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ENGLISH  CROWN  GRANTS 


English  Crown  Grants 


BY 
S.  L.  MERSHON 


MEMBER  OF 

THE  NATIONAL  GEOGRAPHIC  SOCIETY,  WASHINGTON,  D.    C. ;    NEW  YORK  HISTORICAL 

SOCIETY,    NEW   YORK    CITY;    CITY    HISTORY    CLUB,    NEW   YORK    CITY; 

STATEN    ISLAND  INSTITUTE  OF  ARTS  AND  SCIENCES;    STATEN 

ISLAND    ANTIQUARIAN     SOCIETY 

AUTHOR  OF 

"THE  MAJOR  AND  THE  QUEEN" 
(A  narrative   of   Colonial  History) 


THE  FOUNDATION   OF   COLONIAL  LAND   TITLES 
UNDER  ENGLISH  COMMON  LA  W 


NEW  YORK 

THE  LAW  AND  HISTORY  CLUB 

PUBLISHERS  39  CORTLANDT  STREET 


COPYRIGHT,  1918,  BY  S.  L.  MERSHON 


aiVIV£KSITY  OF  SOUTHERN  CALIFORNIA  LIBFJ\lt^ 


A; 

CONTENTS     -  7       _ 


PAGE 


The  Psychology  of  Crown  Grants i 

The  Evolution  of  Crown  Grants 15 

Staten  Island  and  Crown  Grants 27 

The  New  World  and  Crown  Grants 54 

English  Common  Law  and  Crown  Grants.  ...  60 

Royal  Authority  for  Crown  Grants 75 

The  Indian  and  Crown  Grants 90 

Riparian  Rights  and  Crown  Grants 104 

Public  Bathing  Places  and  Crown  Grants 117 

Under  Sea  Lands  and  Crown  Grants 129 

Fish,  Oysters  and  Crown  Grants 136 

The  Grip  of  Crown  Grants 151 

Title  Guarantees  and  Crown  Grants 170 

Analysis  of  One  of  the  Crown  Grants 182 

Quit-Rents  and  Crown  Grants 203 

Manor  of  East  Greenwich  and  Crown  Grants. .  210 

Adverse  Possessions  under  Crown  Grants 217 

The  Larger  Vision  under  Crown  Grants 228 

The  Symes  Foundation  and  Crown  Grants.  .  .  .  236 

Section  i.  Letter  from  Title  Companies  to 
Citizens  and  Friends  of  Staten 
Island   237 

Section   2.      Certificate    of   Incorporation   of 

The  Symes  Foundation 240 

Section  3.  Contract  between  American 
Title  and  Trust  Company  and 
The  Symes  Foundation 244 


192S6SS 


FOREWORD 

The  American  Bar  Associations,  Historical  So- 
cieties, Colonial  Organizations  and  all  thoughtful 
citizens  have  a  vital  interest  in  the  unique  history 
and  present-day  dominating  influence,  in  America,  of 
the  old  English  Crown  Grants. 

Their  virility  is  unimpaired  despite  the  flight  of 
centuries. 

The  Royalty  of  the  past  frequently  restricts  and 
restrains  the  Democracy  of  to-day. 

It  was  the  personal  will  and  whim  of  the  English 
Sovereigns,  as  expressed  in  the  English  Crown 
Grants,  that  prescribed  the  basis  of  Governmental, 
Commercial,  Educational  and  Industrial  Institutions, 
in  the  American  Colonies,  which  Colonies  subse- 
quently constituted  "the  Original  Thirteen  States." 

English  Crown  Grants  are  to-day  powerfully  ac- 
tive elements  in  our  National  Life. 

Great  Universities,  including  Yale  and  Princeton, 
many  ancient  and  wealthy  churches,  sit  tight  and 
smug  under  powers  received  by  them,  in  their  char- 
ters, from  autocratic  hands  now  long  since  crumbled 
into  dust. 

Ferries  are  now  operating  in  New  York  because 
English  Kings,  centuries  ago  granted  the  franchises 
so  to  do.  Competition  therewith  is  restrained  be- 
cause the  olden  time  and  long  since  deceased  mon- 
archs  decreed  that  such  Ferries  should  constitute  a 
monopoly. 


FOREWORD 

The  most  powerful  title  company  in  the  world 
has  recently  announced  that  it  will  not  guarantee  its 
land  title  searches  covering  lands  in  one  of  the  Bor- 
oughs of  Greater  New  York,  if  required  to  make 
such  searches  back  to  the  English  Crown  Grants. 

Every  foot  of  land,  in  that  designated  Borough  de- 
pends, for  a  complete  chain  of  title,  upon  some  one 
basic  Grant  from  the  English  Crown. 

To  ignore  that  fact  is  fatalistic,  to  defy  it  is  reck- 
lessness, especially  in  the  face  of  the  indictment  of  the 
land  titles  of  an  entire  Borough  of  Greater  New 
York  by  the  world's  most  powerful  title  company. 

Incredible  disregard  of  the  rights  descending  un- 
der English  Crown  Grants,  confirmed  by  treaty  be- 
tween Great  Britain  and  the  United  States  of  Amer- 
ica, which  treaties  are  "  the  supreme  law  of  the  land," 
has  precipitated  costly  litigation  involving  vast  areas 
of  lands  of  immense  values  in  the  Borough  of  the 
Bronx,  on  Riverside  Drive,  at  Coney  Island,  Rocka- 
way  Beach,  Oyster  Bay,  Northport,  Lake  Cham- 
plain,  the  Hudson  River  and  many  other  places  in 
New  York  State. 

Like  controversies  have  involved  land  titles  in 
Maryland,  Delaware,  Virginia  and  other  States. 

The  uniform  and  inflexible  attitude  of  both  Fed- 
eral and  State  Courts  has  been  to  sustain  the  legality 
and  inviolability  of  the  English  Crown  Grants  as 
covering  lands  Granted  by  the  English  Crown  in  the 
American  Colonies. 

The  English  Crown  Grants  of  lands  on  Staten  Isl- 
and have  been  selected  by  the  author  as  the  most  di- 
versified, yet  favorable  grouping  of  Grants,  to  illus- 
trate the  discussion  of  the  problems  involv^ed. 


FOREWORD 

Probably  no  locality  in  English  Colonial  America 
furnishes  such  an  interesting,  varied  and  yet  com- 
plete group  of  Crown  Grants  as  appears  on  the  pub- 
lic records  of  Richmond  County,  New  York,  in  which 
County  Staten  Island  is  situated. 

S.  L.  MERSHON. 

Montclair,  N.  J. 


THE  PSYCHOLOGY 

OF 

CROWN  GRANTS 

WHAT  IS  LAW  ?  Many  have  been  the  responses 
to  this  query.  It  has  been  said  that  law  is  composed 
of  three  elements: — 

FIRST: — A  command  of  the  lawgiver,  which 
command  must  prescribe,  not  a  single 
act  merely,  but  a  series  or  class  of 
acts. 

SECOND : — An  obligation  imposed  thereby  on  a 
citizen.    ^ 

THIRD: — A  sanction frtireatened  in  the  event  of 
disobedience.  (Benth,  Frag,  on 
Gov.) 

Blackstone  defines  law  as : 

"A  rule  of  civil  conduct  prescribed  by  the 
"Supreme  Power  in  the  State,  commanding  what 
"is  right  and  prohibiting  what  Is  wrong,"  (i 
B.  La.  Com.  44.) 

"The  law  of  the  land  as  used  in  the  Magna 
"Charta  and  adopted  in  many  of  the  earlier 
"constitutions  of  the  original  Thirteen  States 
"means  more  than  the  Legislative  will.  It  re- 
"quires  the  due  and  orderly  proceeding  of  Jus- 


2  ENGLISH  CROWN  GRANTS 

"tice,   according  to   the   established  methods." 
(8  Gray  29.) 
In  the  United  States,  the  organic  law  of  a  State 
is  termed  the  Constitution,  and  the  term  "laws"  gen- 
erally designate  Statutes  or  Legislative  Enactments 
in  contradistinction  to  the  Constitution. 

"Law,  as  distinguished  from  equity,  denotes 
"the  doctrine  and  procedure  of  the  common  law 
"of  England  and  America,  from  which  equity 
"is  a  departure." 

Human  reason  demanded  the  enunciation  of  the 
incontrovertible  principles  upon  which  the  temple  of 
justice  might  be  reared.  Constitutional  authorities 
are  in  agreement  that  the  true  source  of  all  law  Irom 
which  equity  and  justice  flow  is  in  the  immutable,  un- 
changeable and  all-powerful  will  of  God,  permeat- 
ing and  extending  throughout  all  nature  and  dom- 
inating and  controlling  all  life. 

We  find,  therefore,  in  its  final  analysis,  or  shorn 
of  all  confusing  and  complex  definitions  that  law  finds 
its  true  interpretation  in  the  correct  answer  to  that 
ever-recurring  question,  "What  is  Truth?"  Truth 
is  the  rule  of  "Exact  accordance  with  that  which  is, 
or  has  been,  or  shall  be,"  as  developed  by  that  Su- 
preme Power  which  makes  for  Righteousness.  Tn 
recognition  of  this  generic  principle,  a  Court  of  Jus- 
tice is  designed  to  discover  the  truth.  Witnesses  are 
sworn  in  the  presence  of  the  Supreme  Soverign  to 
declare  "the  truth,  the  whole  truth  and  nothing  but 
the  truth."  The  Divine  Master,  when  he  would 
cleanse  Humanitv'^  from  its  corruption,  put  up  the 
petition    to    the    Almighty    Father,    "Sanctify    them 


ENGLISH  CROWN  GRANTS  3 

through  Thy  Truth,  Thy  Word  is  Truth."  This 
was  an  invocation  that  the  laws  of  Divine  Justice 
might  find  ramification  throughout  all  human  rela- 
tions, the  culmination  of  which  would  be  "Peace  on 
earth,  good  will  to  men."  The  highest  consumma- 
tion of  all  law  is  the  rule  of  the  "law  of  love."  "Law 
is  beneficence  acting  by  rule."  "Love  is  the  fulfill- 
ment of  the  Law." 

It  is  a  trite  saying  that  in  the  bosom  of  every 
acorn  there  lies  dormant  the  form  and  pattern  of  a 
majestic  oak.  Stricken  by  the  winter's  cold,  forced 
into  action  by  the  summer's  heat,  and  drinking  at  the 
font  of  evening  showers,  the  acorn  hears  the  call  of 
life  and  starts  on  its  upward  toilsome,  yet  unconscious 
climb  for  the  fulfillment  of  the  marvelous  design  of 
which  it  has  been  made  the  sacred  shrine.  Law  an- 
ticipated its  being,  co-ordinated  its  elements  and  hav- 
ing charged  its  life  with  a  design,  which  of  necessity 
presupposes  a  dominating,  directing  and  governing 
intelligence,  sent  if  forth  on  its  beneficent  mission  of 
tree  building.  Every  tree  represents  a  Super-Intelli- 
gence, directing  and  guiding  a  subservient  force, 
working  out  an  engineering  design,  embodying  me- 
chanical construction  and  chemical  processes,  along 
lines  of  artistic  skill  and  beauty;  and  all  with  special 
adaptation  to  human  needs.  Under  its  shade  we  may 
rest  and  contemplate  but  never  duplicate  it  by  our 
artifice. 

A  tree  is  not  a  thesis  in  the  school  of  human 
thought.  It  is  an  axiom.  It  is  a  bound  volume  in 
nature's  law  library,  indexing,  by  its  trunk,  branches, 
lenves,  blossoms  and  fruit,  the  intelligent  purpose, 
organizing  power  and  beneficent  operation  of  an  in- 


4  ENGLISH  CROWN  GRANTS 

telligent  law  that  works  in  nature's  arena  of  human 
activities. 

That  masterful,  dominating  Intelligence  "that  was, 
is,  and  is  to  be,"  and  which  is  the  Creator  and  Di- 
rector of  the  forces  of  Nature,  the  royal  sway  of 
which  tends  to  the  highest  good  and  greatest  happi- 
ness, has  not  confined  the  implanting  of  His  law 
within  the  bounds  of  unintelligent  nature.  We  find 
in  embryonic  form  in  the  minds  of  men  everywhere 
an  endowed  tendency  which  when  given  its  true  op- 
portunity for  development,  works  out  the  highest 
system  of  justice  in  human  relations. 

"The  Ancients  said  their  laws  came  from  the 
"gods.  The  Cretons  attributed  their  laws,  not 
"to  Minos  but  to  Jupiter.  The  Lacedaemonians 
"believed  that  their  legislator  was  not  Lucurgus, 
"but  Apollo.  The  Romans  believed  that  Numa 
"wrote  under  the  direction  of  one  of  the  most 
"powerful  divinities  of  ancient  Italy, — the  god- 
"dess  Egeria.  The  Etruscans  had  received  their 
"laws  from  the  god  Tages. 

"There  is  truth  in  all  these  traditions.  The 
"veritable  legislator  among  the  ancients  was  not 
"a  man  but  the  religious  belief  which  men  enter- 
"talned.    The  laws  long  remained  sacred. 

"From  this  we  can  understand  the  respect  and 
"attachments  which  the  ancients  long  had  for 
"their  laws.  In  them  they  saw  no  human  work, 
"but  one  whose  origin  is  holy.  It  was  no  vain 
"word  when  Plato  said,  *To  obey  the  laws  is  to 
"obey  the  gods.' 


ENGLISH  CROWN  GRANTS  5 

"In  principle,  the  laws  were  immutable,  since 
"they  were  divine. 

"Man  did  not  need  to  study  his  conscience 
"and  say,  'This  is  just  and  this  is  unjust'  An- 
"cient  law  was  not  produced  in  that  way.  But 
"man  believed  that  the  sacred  hearth,  in  virtue 
"of  the  religious  law,  passed  from  father  to  son; 
"from  this  it  followed  that  the  house  was  hered- 
"itary  property.  The  man  who  had  buried  his 
"father  in  his  field  believed  that  the  spirit  of  the 
"dead  one  took  possession  of  this  field  forever 
"and  required  a  perpetual  worship  of  his  pos- 
"terity.  As  a  result  of  this,  the  field,  the  domin- 
"ion  of  the  dead  and  place  of  sacrifice,  became 
"the  inalienable  property  of  the  family. 

"Religion  said  'the  son  continues  the  worship, 
"not  the  daughter;  and  the  law  said,  with  the 
"religion,  'the  son  inherits,  the  daughter  does  not 
"inherit,  but  not  the  nephew  on  the  female  side.' 

"This  was  the  manner  in  which  the  laws  were 
"made;  they  presented  themselves  without  being 
"sought.  They  were  the  direct  and  necessary 
"consequence  of  the  belief;  they  were  religion  it- 
"self  applied  to  the  relations  of  men  among 
"themselves."  (Primitive  and  Ancient  Institu- 
tions, pages  I06,  I07.) 

The  American  Indian,  in  order  to  express  Sover- 
eignty, used  the  word  "Sachem,"  which  being  inter- 
preted, means  "Power  from  above."  The  Peruvian 
aborigines  declared  that  their  Incas  were  the  children 
of  their  divinity,  the  Sun. 

"The  Laws  of  the  Medes  and  Persians  changeth 


6  ENGLISH  CROWN  GRANTS 

not,"  they  being  as  was  then  believed  to  be  divine  de- 
crees, which  were  "the  same  yesterday,  to-day,  and 
forever." 

According  to  the  Greeks,  the  sacred  fire  taught 
men  to  build  houses.  The  house  was  always  placed 
in  the  sacred  enclosure.  The  walls  were  raised 
around  the  sacrificial  hearth  to  isolate  and  defend 
it,  and  it  was  the  religion  of  the  family  that  influenced 
the  erection  of  the  house.  The  house  was  conse- 
crated by  the  perpetual  presence  of  the  gods.  It  was 
the  temple  idea  which  preserved  them. 

"Here  is  his  altar,  here  is  his  hearth,  here  are 
"his  household  gods;  here  all  his  sacred  rights, 
"all  his  rehgious  ceremonies  are  preserved." 

Family  tombs,  walled  in,  gradually  gave  rise  to  in- 
dividual title  to  lands.  The  dead  were  gods,  the  ob- 
ject of  family  worship,  and  their  burial  places, 
through  religion,  became  family  properties  with  title 
from  the  gods. 

The  militant  spirit  conceived  the  house  to  be  a 
man's  "citadel."  The  religious  instinct  gave  birth  to 
the  doctrine  of  the  "sacred"  rights  of  proprietorship 
in  a  homestead. 

We  of  this  generation  have  inherited  from  our  an- 
cestors the  doctrine  that  the  original  and  ultimate 
title  to  all  property  was  and  is  vested  in  the  King, 
Queen  or  other  Sovereign  power.  This  theory  is 
explainable  in  several  ways  as  it  developed  among 
our  different  ancestral  tribes.  They  all  hark  back, 
however,  to  the  principle  implanted  in  the  universal 
mind  of  man,  that  all  property  rights  and  titles  orig- 
inally vested   in   and  eminated   from  the   Supreme 


ENGLISH  CROWN  GRANTS  7 

Sovereign  of  all  the  Universe.  That  by  the  free  and 
voluntary  act  of  the  Omnipotent  Ruler,  lands  were 
apportioned  among  the  children  of  men.  "The  Most 
High  divided  to  the  Nations  their  inheritance."  (Ex. 
32:8.)  Such  lands,  however,  when  so  apportioned 
carried  therewith  "the  obligation  of  fealty  and  ser- 
vice" to  the  Great  King.  Titles  having  been  so  con- 
veyed to  His  subjects,  the  obligation  "followed  with 
the  land,"  so  that  the  Grantees  when  called  upon 
should  appear,  in  feudal  fashion,  as  loyal  retainers 
and  true  soldiers  of  the  King  to  do  moral  battle  for 
Him.  Such  a  Royal  Grant  from  the  Great  Sovereign 
required  that  the  King's  Grantee  should  justly,  by 
gift  and  bequest,  apportion  lands  among  others  on 
like  "conditions  of  fealty  and  service"  to  the  King. 
Thus  the  King's  realm  would  be  safe  and  his  sub- 
jects happy.  To  accept  and  serve  under  allegiance 
to  such  a  divine  government  is  to  establish  a  well- 
ordered  rule  of  righteousness. 

This  doctrine  of  original  proprietorship  and  ulti- 
mate ownership  of  all  land  as  being  vested  in  the 
Supreme  Sovereign  of  all  the  earth  is  most  clearly 
represented  in  its  purest  form  in  the  History  of  the 
Hebrew  Race.  Their  representative,  Moses,  went 
up  into  Mount  Sinai  and  received  their  Laws  for 
them,  direct  from  the  unseen  and  invisible  Ruler  of 
all  the  Universe.  They  receive  their  Grant  to  the 
land  "beyond  Jordan"  from  that  same  Imperial 
Source — "The  land  which  the  Lord  thy  God  giveth 
thee."  (Ex.  20:12.)  They  entered  and  took  posses- 
sion thereof  according  to  the  terms  of  the  Grant.  By 
Imperial  decree  they  evicted  the  prior  owners  be- 
cause the  latter  had  not  paid  their  proper  quit  rents 


8  ENGLISH  CROWN  GRANTS 

of  fealty  and  service  to  the  Great  King  from  whom 
they  had  received  the  land.  Such  land,  however, 
so  seized  and  possessed  by  the  Hebrews  was  still 
charged  with  the  obligation  of  fealty  and  service  to 
Jehovah  and  was  taken  over  by  the  twelve  tribes  of 
Israel  with  full  knowledge  of  and  consent  to  the  con- 
ditions imposed  thereon. 

The  tithing  tax  appears  in  the  well-known  Hebraic 
code  of  laws.  The  Hebrews  received  and  held  the 
title  to  the  divinely  granted  land,  but  the  original  and 
ultimate  ownership  was  admittedly  in  their  recog- 
nized but  Unseen  Sovereign,  and  their  tenure  thereof 
was  a  conditional  one.  They  had  a  title  subject  to  for- 
feiture, for  the  Sovereign  did  subsequently  re-enter, 
taking  possession  thereof  and  evicted  them  from  the 
land  when  they  violated  their  oath  of  allegiance,  or 
pledge  of  fealty  to  Him,  and  paid  their  tribute  to 
other  kings  or  deities.  The  true  proprietor  of  the 
lands  had,  however,  duly  served  advance  notice  upon 
them  and  upon  their  continued  default  he  escheated 
the  lands.  The  doctrine  of  Original  Proprietorship 
and  Ultimate  Ownership  of  title  by  the  Supreme  Ruler 
was  thereafter  re-enunciated  when  the  true  Heir  to 
the  Throne  subsequently  appeared  in  the  lands  which 
were  still  possessed  by  Israel  under  the  above  men- 
tioned Grant.  Meanwhile  the  Romans  had  levied 
upon  the  land  in  true  sheriff  fashion  and  eviction  was 
then  pending. 

Jesus  Christ,  the  Crown  Prince  of  Israel,  came  to 
restore,  If  possible,  the  original  relationship  between 
His  Father,  the  Proprietor,  and  His  about  to  be  dis- 
possessed subjects.  He  patiently  explained  to  the  peo- 
ple His  Father's  right  thereto  by  telling  them  that 


ENGLISH  CROWN  GRANTS  9 

"All  things  were  made  by  Him,  and  without  Him  was 
not  anything  made  that  was  made."  He  further  con- 
firmed to  them  the  statement  of  their  own  beloved 
over-lord,  King  David,  who  had  said  that  "The  earth 
is  the  Lord's  and  the  fulness  thereof."  In  this  way 
they  were  called  upon  to  see  that  both  real  estate  and 
personal  property,  as  to  ultimate  ownership  and  origi- 
nal proprietorship  were  vested  in  the  Great  King,  or 
Jehovah.  In  remarkable  imagery,  so  dear  to  the 
heart  of  every  Hebrew,  this  Prince  explained  to  them 
how  the  lands  had  been  apportioned  out  as  if  the  soil 
was  a  great  "vineyard,"  while  "the  owner  went  into 
a  far  country."  He  gave  them  to  understand  their 
possessory  rights,  in  the  well-known  term,  "occupy 
until  I  come."  The  Hebrews  were  given  to  under- 
stand that  a  renewed  grant  and  continued  possession 
were  due  to  the  "profitable  servant"  while  disposses- 
sion would  be  justly  meted  out  to  the  "unprofitable 
servant."  He  distinctly  told  them  that  upon  the 
Great  Sovereign's  demand  for  an  accounting  the  Sov- 
ereign had  a  right  to  expect  that  He  was  "to  receive 
His  own,  with  interest."  The  enunciation  of  this 
principle  drew  out  of  the  rich  yonnq;  man  the  avowal, 
"I  give  tithes  of  all  I  possess."  (Luke  18:12.)  In 
American  Colonial  language.  It  might  well  have  been 
stated,  "I  always  pay  my  quit  rents  to  the  Great  King 
of  Heaven  and  Earth." 

This  Royal  Crown  Prince  further  laid  down  an- 
other and  very  broad  principle  that  Is  wider  than  its 
application  to  the  Hebrew  race.  In  Its  scope  it  Is  as 
broad  as  humanity,  and  In  point  of  time  extends  to 
the  limits  of  human  life.  He  made  It  plain  that  all 
properties,  both  real  and  personal,  having  originally 


lo  ENGLISH  CROWN  GRANTS 

issued  forth  from  the  Great  Proprietor,  will  ulti- 
mately revert  to  that  Great  Proprietor,  and  that  the 
ultimate  dispossession  of  the  entire  human  race  from 
this  planet  will,  as  is  now  predicted  by  science,  restore 
complete  title  and  possession  to  the  original,  sole  and 
true  owner,  "the  King  of  all  the  Earth."  God  in  his 
earthly  solitude  will  then  watch  at  the  grave  where 
the  last  human  sleeps.  He  it  was  who  held  in  one 
vast  unbroken  estate  the  solitudes  of  Earth  before 
Eden  heard  the  footfalls  of  human  life.  From  him 
issued  the  Grants  of  land  to  the  people  whom  He 
created  and  for  whom  the  world  was  prepared.  A 
great  purpose  inspired  it  and  great  moral  obligations 
were  imposed. 

The  world's  greatest  law  giver,  Moses,  said, 
"And  all  the  tithes  of  land,  whether  the 
"seed  of  the  land  or  the  fruit  of  the  trees,  is  the 
"Lord's;  it  is  holy  unto  the  Lord."  (Lev.  27 : 
30.)  That  is  to  say,  the  "Quit  Rents"  are 
wholly  His,  and  the  obligations  for  the  payment 
thereof  "run  with  the  land." 

This  doctrine  is  basic  in  the  realm  of  human 
thought.  It  has  developed  the  legal  maxim  current 
in  text  books  of  law.  "It  is  more  serious  to  hurt  di- 
vine than  temporal  majesty."  (2  Cor.  29.)  There- 
fore, we  swear  our  witnesses  in  the  presence  of  the 
Ever  Living  God,  while  they  hold  the  Book  of  His 
Law  in  their  hands. 

Among  the  races  of  men  who  originally  accepted 
the  theocratic  form  of  government  as  fundamentally 
correct  were  some  with  materialistic  tendencies.  They 
revolted  against  straining  their  eyes  towards  an  in- 


ENGLISH  CROWN  GRANTS  ii 

visible  Sovereign.  Their  minds  recoiled  against  an 
immaterial  and  invisible  government.  Mental,  moral 
and  spiritual  forces  were,  to  their  sordid  vision,  as 
nothing  in  comparison  with  burnished  steel  and  sharp- 
ened lances.  A  "Commission  form  of  government" 
residing  in  a  Board  of  Judges,  when  put  to  the  test 
broke  down  among  the  Jews  and  the  Hebrews  cried 
out  for  a  king.  The  spirit  of  militarism  then  ran 
high  among  them.  Jehovah,  they  thought,  was  in 
another  world.  The  prophets  and  the  judges,  they 
concluded,  were  wise  old  men,  but  somewhat  passee 
and  without  force  to  back  up  their  decrees.  Hence 
they  cried,  "Give  us  a  king."  Then  there  promptly  ap- 
peared among  them  the  wily  politician  and  ambitious 
soldiers,  who  were  ready  for  political  place  and 
power. 

Had  not  Moses,  the  autocrat,  delivered  to  the  peo- 
pie  the  very  laws  of  Heaven?  The  prophets  and 
judges  had  seemed  to  the  Jews  quasi  divine.  Why 
then  should  not  a  human  king  of  earth  voice  the  de- 
crees of  the  King  of  Heaven  and  back  them  up  with 
military,  in  place  of  spiritual  forces? 

It  is  impossible  in  the  short  space  of  this  state- 
ment to  trace  from  its  concept  to  its  conclusion  the 
amazing  and  now  almost  inconceivable  doctrine  of 
"the  divine  right  of  kings."  "The  King  can  do  no 
wrong."  (2  Rolle  304;  Jenk  Cent  9-3)  ;  Boom 
Max  52  ;  Sharsw.  Bla.  Com.  246.)  "The  King  never 
dies."  (Boom  Max  50;  Branch  Max  5th  Ed.  197; 
Bla  Com.  259.)  "The  King  cannot  deceive  or  be 
deceived."     (Grounds  and  Rud.  of  Law  439.) 

This  Idealized  but  false  conception  of  the  earthly 
king's  perfection  was  sporadic.  Infectious  and  became 


12  ENGLISH  CROWN  GRANTS 

universal.  To  the  earthly  king  as  successor  to  the  Di- 
vine Sovereign  therefore  fell  the  proprietorship  of 
all  "the  vacant  and  unappropriated  lands  within  the 
realm,"  To  him  fealty  must  be  pledged.  To  him 
the  revenue  must  be  paid.  Divinity  dethroned.  Hu- 
manity enthroned — "Long  live  the  King." 

Among  the  prerogatives  of  sovereignty,  conscrip- 
tion was  a  "Divine  right."  Even  *n  these  modem 
days,  when  the  tides  of  democracy  are  sweeping  with 
tremendous  force  about  the  thrones  of  Imperial  rul- 
ers, we  hear  enunciated,  in  royal  proclamations  under 
the  seal  of  the  Crown,  such  expressions  as  "My 
realm,"  "My  kingdom,"  "My  army,"  "My  navy," 
and  "My  people."  The  doctrine  of  Original  Proprie- 
torship and  Ultimate  Ownership  in  the  human  sov- 
ereign exists  today  with  tremendous  force  and  power. 
It  is  recognized  to  the  fullest  extent  in  international 
law  and  stands  convicted  at  the  bar  of  Public  Opinion 
as  the  primal  cause  of  the  horrible  tragedies  being  en- 
acted in  the  world  war,  the  scourge  of  Europe,  and 
the  atheist  of  a  heart-broken  world. 

Divine  Sovereignty,  as  revealed  In  a  true  Christian 
Socialism  Is  day  by  day  steadily  and  gradually  com- 
ing into  its  own.  Mark  the  term,  however.  Christian 
Socialism. 

.  The  tragic  attempt  on  the  part  of  humanity  to  de- 
pose Divine  sovereignty  and  to  impose  in  its  place  a 
human  king,  with  Divine  prerogatives  and  powers  is 
pathetically  illustrated  In  the  prophetic  narrative  ( i 
Sam.,  Chap.  8),  from  which  we  make  the  following 
citations : 

"Then  all  the  elders  of  Israel  gathered  them- 


ENGLISH  CROWN  GRANTS  13 

"selves  together  and  came  to  Samuel  at  Ramah, 
"and  said  unto  him,  Now  make  us  a  king  to 
"judge  us  like  all  the  nations. 

"But  the  thing  displeased  Samuel,  when  they 

"said  Give  us  a  king  to  judge  us.  And  Samuel 
"prayed  unto  the  Lord. 

"And  the  Lord  said  unto  Samuel,  hearken 
"unto  the  voice  of  the  people  in  all  that  they  say 
"unto  thee,  for  they  have  not  rejected  thee,  but 
"they  have  rejected  me,  that  I  should  not  reign 
"over  them  .  .  .  Howbeit  yet  protest  solemnly 
"unto  them  and  show  them  the  manner  of  the 
"king  that  shall  reign  over  them.  And  Samuel 
"told  all  the  words  of  the  Lord  unto  the  people 
"that  asked  of  him  a  king. 

"Nevertheless  the  people  refused  to  obey  the 
"voice  of  Samuel  and  they  said,  Nay,  but  we  will 
"have  a  king  over  us." 

Divine  Majesty  was  dethroned !  Then  human  sov- 
erignty  failed,  dispossession  of  lands  followed,  and 
Israel  wandered  a  scattered  nation,  without  a  coun- 
try.  That  most  marvelous  of  all  people,  the  He- 
brews, are  now  being  restored  to  their  own  home  land, 
such  restitution  having  been  made  possible  by  the 
great  World  Powers  under  the  spiritual  leadership  of 
that  man  of  all  men,  that  Jew  of  all  Jews,  Jesus  the 
Son  of  David,  the  climax  of  all  prophecy  and  the  in- 
carnation of  "the  hope  of  Israel." 

Fealty  and  service  will  again  be  required  by  Je- 
hovah as  a  condition  precedent  to  renewed  possession 


14  ENGLISH  CROWN  GRANTS 

of  this  "Holy  Land,"  which  was  apportioned  to  the 
children  of  Israel  when  "the  Most  High  divided  to 
the  Nation's  their  inheritance."     (Ex.  32:  8.) 

Then  shall  "the  wailing  places  of  the  Jews"  be 
flooded  with  song  as  the  erstwhile  escheated  land  of 
sacred  and  sorrowful  memories  shall  once  again  re- 
sound with  the  songs  of  Israel.  He  who  asserts  an 
absolute  title  in  himself  to  any  land  whatsoever  and 
claims  that  the  same  Is  exempt  from  "the  obligation 
of  fealty  and  service"  to  the  Great  Sovereign  will 
eventually  be  adjudged  as  in  default.  His  land  will 
be  finally  escheated  and  he  himself  will  be  at  last 
evicted  from  the  Crown  Estate  for  general  default, 
under  the  terms  of  the  Original  Crown  Grant.  To 
him  who  denies  fealty  to  the  Highest  and  evades  his 
true  obligations,  "the  tax  dodger  of  two  worlds,"  the 
record  speaks : 

"But  God  said  unto  him,  Thou  fool,  this  night 
"thy  soul  shall  be  required  of  thee:  then  whose 
"shall  those  things  be  which  thou  hast  provided? 

"So  is  he  that  layeth  up  treasures  for  himself 
and  is  not  rich  towards  God."      (Luke  12:20, 

21.) 

"It  is  a  mistake  to  think  ourselves  stewards 
in  some  of  God's  gifts  and  proprietors  in  others." 


THE    EVOLUTION 

OF 

CROWN    GRANTS 

It  has  well  been  said  that  in  the  early  ages  of  the 
world  the  condition  of  the  land  was  probably  allodial; 
that  is,  it  was  not  subject  to  any  superior.  Every  man 
occupied  as  much  land  found  unappropriated  as  his 
necessities  required.  Over  this  land  he  exercised  an 
unqualified  dominion.  This  condition  reminds  us 
of  the  original  Adam  in  the  Garden  of  Eden,  who  for 
a  time  did  not  even  possess  a  wife  to  claim  "a  dower" 
in  the  lands  beneath  his  feet,  and  a  Robinson  Crusoe 
"whose  rights  there  was  none  to  dispute." 

Blackstone  did  not  accept  the  theory  that  in  the 
earlier  stages  of  the  human  race  man  wandered  about 
alone  and  in  vast  solitudes.  He  believed  that  fear  of 
the  unknown  and  a  sense  of  human  need  caused  them 
to  group  themselves  together  in  their  wanderings. 

When  the  armies  of  Caesar  were  penetrating  the 
forest  vastnesses  of  northern  Europe,  the  Teutonic 
people  were  being  gradually  transformed  from  no- 
madic tribes  into  settlers  in  small  villages  and  hamlets, 
with  fixed  habitations.  Nomadic  groups  of  people, 
upon  arriving  at  a  river  or  seaside,  favorable  for  fish- 
ing, acquired  the  habit  of  settling  there  at  least  for 
a  time.  Others,  upon  reaching  a  rich  and  luxurious 
vallev  well  adapted  for  herding  or  tilling  would  there 

IS 


i6  ENGLISH  CROWN  GRANTS 

erect  crude  huts  and  make  permanent  their  stay. 
Human  wanderers,  perchance  pursued  by  thievish  and 
hostile  foes,  upon  reaching  land  easily  defended, 
would  there  form  a  simple  but  definite  settlement. 

These  villages  or  permanent  encampments,  were 
the  first  foundation  stones,  uncut,  rough  and  un- 
symmetrical,  which  formed  the  original  basis  of  mod- 
ern rights  of  land  ownership  among  Teutonic  peoples 
and  their  descendants.  Out  from  such  a  crude  and 
rugged  source  has  flowed  one  of  the  gradual  but 
ever  widening  streams  of  land  titles,  forming  a  part 
of  the  present  day  codified  rights  of  ownership  in 
real-estate  in  Teutonic  countries.  This  theory  was 
the  antipode  of  the  one  according  to  which  land  was 
acquired  in  the  original  American  Colonies. 

As  civilization  advanced  from  these  primitive 
conditions  society  became  more  complex.  Every  up- 
ward step  developed  greater  needs.  Accumulated 
wealth  and  broader  culture  imperatively  called  for 
added  security,  comfort  and  civic  order,  until  at  the 
present  time  we  are  surrounded  bv  conditions,  regu- 
lated and  controlled  by  statutes  and  laws,  protecting 
property  rights,  guarding  human  life,  also  defining 
and  guaranteeing  personal  liberty.  All  these  are  the 
natural  and  logical  developement  of  a  system  called 
into  existence  by  human  progress,  and  calculated  from 
actual  experience  to  safeguard  human  rights. 

The  communities  referred  to  were  at  first  generally 
composed  of  kinsfolk  in  households,  or  a  cluster  of 
families.  The  bonds  binding  the  members  of  the  set- 
tlements were  either  those  of  kinship  or  a  recognized 
need  for  mutual  defense  and  protection. 


ENGLISH  CROWN  GRANTS  17 

As  these  small,  primitive  colonies  developed  among 
the  Teutonic  tribes  certain  questions  at  once  arose  in 
each  as  to  the  rights  of  the  respective  householders 
to  the  soil  on  which  they  had  pitched  their  tents, 
erected  their  camps,  enclosed  their  flocks  or  herds,  or 
upon  which  they  were  cultivating  their  needed  vege- 
table or  grain  supplies. 

At  first  in  all  such  primitive  communities  certain 
"land  marks"  or  lines  were  drawn  upon  the  ground 
through  the  settlements  and  a  general  understanding 
was  arrived  at  by  mutual  and  oral  consent,  that  within 
the  confines  of  the  land  so  marked  out  the  respective 
householders  alone  had  sway.  It  was  at  first  but  a 
possessory  right  pending  the  period  of  occupancy. 

The  theory  appears  to  have  been  that  he  who  oc- 
cupied such  land  had  but  the  use  of  the  land  so  plotted 
out  and  did  not  have  any  actual  ownership  in  the  land 
itself.  As  time  passed  on  and  families  remained  es- 
tablished at  fixed  points,  houses  replacing  huts,  the 
theory  of  "occupancy  for  use"  gradually  developed 
into  a  claim  of  ownership  of  the  soil  on  which  the 
domicil  had  been  erected.  This  right  of  proprietor- 
ship being  once  established,  there  naturally  developed 
the  right  of  sale  of  such  property  so  held. 

In  this  manner  there  were  gradually  established 
first  villages  and  then  townships  in  which  the  houses 
and  what  pertained  thereto  were  distinguished  as  in- 
dividual properties.  What  had  once  been  communal 
dwelling.^  were  recognized  as  fixed  habitations  and 
became  the  abode  of  separate  and  distinct  families, 
dwelling  upon  land  representing  individual  proprietor- 
ships. 

These  local  settlements  were  but  oases  in  great 


1 8  ENGLISH  CROWN  GRANTS 

expanses  of  forests,  hills  and  dales,  which  were  con- 
sidered to  be  "No  Man's  Land,"  and  over  which 
waste  places  no  human  sovereign  ruled.  Such  wild 
and  vacant  lands  were  imagined  to  be  largely  pos- 
sessed by  hybred  and  nondescript  creatures,  which 
were  in  fact  born  of  human  superstition  and  ignorant 
fear  of  the  indefinite  and  unknown.  Demonology 
and  witchcraft  held  sway  therein  and  the  popular 
deities  in  those  vast  expanses  were  conjured  up  de- 
mons. 

Under  these  primitive  conditions,  house  property 
in  villages  and  towns  was  generally  regarded  as  hav- 
ing an  absolutely  independent  and  separate  character 
from  properties  located  in  the  agricultural  and  pas- 
toral outskirts  of  the  villages.  The  latter  were  con- 
sidered to  be  the  common  lands  of  the  community. 
From  this  communal  theory  of  lands  so  held  we  in- 
herit what  we  now  term  "The  Commons." 

At  first  little  regard  was  had  for  individual  rights 
of  ownership  in  cultivatable  soil,  as  agriculture  being 
but  crudely  and  carelessly  developed,  was  of  an  uncer- 
tain and  changeable  nature. 

A  piece  of  land  selected  by  a  householder  for  herd- 
ing his  flocks  in  one  season,  might  be,  and  very  fre- 
quently was,  abandoned  for  another  piece  or  patch  of 
ground  the  following  season.  Thus  it  came  about  that 
while  definite  bounds  were  fixed  for  village  and  town 
habitations,  as  of  individual  proprietorship,  the  doc- 
trine of  lands-in-common,  or  "the  commons"  of  later 
days  became  established. 

In  this  way  there  gradually  developed  two  princi- 
ples of  land  ownership,  known  respectively  as  "folk- 
lands"  or  lands  owned  by  individuals  and  common  or 


ENGLISH  CROWN  GRANTS  19 

communal  lands  which  were  owned  by  the  people  in 
common. 

As  human  intelligence  increased  and  the  importance 
and  value  of  definite  locations  became  more  fixed  and 
determined,  a  system  or  method  of  regulating  and 
defining  individual  rights  and  establishing  orderly 
control  of  the  communal  properties  became  neces- 
sary. 

Thereupon  the  custom  came  into  vogue  of  entering 
in  a  book  a  description  of  the  properties  individually 
claimed  and  recognized  by  the  community  to  be  folk- 
land  and  which  had  become  subject  to  private  owner- 
ship. 

From  that  time  on  such  lands  were  known  as 
"Book-land."  The  entries  so  made  in  such  books  be- 
came the  recognized  proofs  and  established  the  fact  of 
individual  proprietorship  in  the  lands  so  recorded. 
These  simple  books  of  entry  subsequently  developed 
into  our  elaborate  system  of  county  records,  brought 
down  to  us  as  a  heritage  from  our  early  ancestors. 

Upon  frequent  occasions  members  of  these  early 
communities  desired  the  temporary  use  of  certain  of 
the  commons  or  communal  lands.  These  demands 
the  communities  were  ready  and  willing  to  grant  for 
a  limited  period  of  time,  but  subject  to  the  reversion 
of  such  lands  to  the  community  and  without  altering 
the  character  of  such  lands. 

When  such  permission  was  so  given,  proper  entries 
were  made  in  the  same  book  and  a  record  of  such  per- 
mission was  entered  and  defined  therein,  duly  setting 
forth  the  right  of  the  lessee  to  use  such  lands  for  a 
temporary  period  but  in  no  wise  parting  with  or  con- 


20  ENGLISH  CROWN  GRANTS 

veying  to  such  individual  or  individuals  the  actual 
ownership  of  such  communal  soil. 

From  this  latter  custom  has  gradually  developed 
the  theory  of  communal  leases,  now  in  vogue  and  con- 
trolled by  our  elaborate  system  of  legal  enactments. 

Generations  came  and  went  while  wealth  increased. 
Communities  composed  of  various  tribes  differing  in 
vocations  and  languages  but  equally  charged  with  bar- 
baric impulses  multiplied.  These  groups  came  into 
close  contact  with  each  other;  the  friction  of  which 
contact  resulted  in  frequent  and  fatal  clashes.  A  sense 
of  constant  fear  of  attack  and  the  danger  of  destruc- 
tion pervaded  communities  which  under  more  isolated 
conditions  had  rested  in  a  reasonable  sense  of  security. 

Leadership  in  each  community  had  been  generally 
established  by  the  selection  of  the  physically  most 
powerful  and  agressive  warrior  as  chief.  Later,  al- 
liances between  weaker  and  neighboring  communities 
as  a  common  protection  and  defense  against  larger 
and  more  powerful  neighbors  became  a  necessity. 

Thereupon  strong,  brave  and  daring  leaders  for 
such  communal  alliances  were  called  for  by  develop- 
ing conditions.  This  need,  once  realized  and  acted 
upon,  rapidly  transformed  small  states  into  king- 
doms and  empires. 

Thus  kings  governing  large  states  appeared  in  Teu- 
tonic history.  They  might  not  always  supplant  the 
local  chieftains,  whose  authority  through  the  vicissi- 
tudes of  time  and  the  expansion  of  territory  was  stead- 
ily magnified,  but  thev  could  co-ordinate  and  direct 
them.  These  formerly  independent  but  lesser  chief- 
tains qraduallv  became  the  barons,  lords  and  other 
petty  rulers  under  great  imperial  sovereigns,  called  by 


ENGLISH  CROWN  GRANTS  21 

the  people  to  power  or  by  warrior  usurpers  of  the 
throne. 

Whether  this  evolution  from  early  to  later  con- 
ditions was  generally  due  to  the  gradual  development 
of  national  conditions  or  usually  came  through  wars 
of  conquest  or  internal  strife  is  immaterial  in  this 
narrative  of  events.  Such  evolution  or  revolution  has 
however  much  to  do  with  the  development  of  the 
rights  of  land  ownership  both  by  the  people  and  the 
Crown. 

Vivified  and  fostered  by  these  national  develop- 
ments, the  doctrine  of  the  Crown  ownership  of  lands 
evolved  therefrom. 

We  have  referred  to  the  doctrine  of  individual 
proprietorship  of  land,  which  was  actually  possessed, 
as  a  gradually  developed  right  of  the  individual  house- 
holder. 

We  have  shown  communal  lands,  held  in  common 
by  the  community  for  the  public's  benefit  and  subject 
to  lease  or  sale  by  the  public  authorities. 

What  of  the  vast  area  of  vacant,  unappropriated 
and  waste  land  in  the  expanse  of  mountains,  forests 
and  valleys  situated  between  the  communities,  but 
without  ownership? 

How  was  the  king  or  sovereign  to  be  provided  for 
and  what  compensation  was  to  be  paid  to  him  for  his 
guardianship  and  protection  of  the  various  communi- 
ties over  which  he  had  been  called  to  rule? 

The  landed  proprietors  were  naturally  warriors: 
but  when  their  services  were  placed  at  the  disposal  of 
the  King  for  war,  it  was  at  least,  in  theory,  in  defense 
of  their  own  properties,  their  families,  and  for  their 


22  ENGLISH  CROWN  GRANTS 

own  booty  and  glory  which  they  to  a  degree  divided 
with  their  king. 

Certain  portions  of  private  land,  crops  and  other 
incomes  and  accumulated  wealth,  these  land  owners 
likewise  pledged  to  their  sovereign  and  king,  but  that 
was,  in  theory  largely,  to  assist  the  sovereign  in  the 
support  of  armies  which  were  enlisted  for  the  de- 
fense of  the  confederated  communities. 

Why  therefore,  should  not  the  wild,  vacant  and 
unappropriated  lands  become  the  property  of  the 
king,  to  be  held  absolutely  as  Crown  property  and  not 
as  communal  lands?  No  individual  owned  them. 
No  community  claimed  them.  The  title  had  never 
passed  from  the  Creator  and  the  King  claimed  his 
throne  by  Divine  right. 

From  this  theory  of  compensation  to  the  sovereign 
who  held  to  a  large  extent  in  his  hands  the  safety  of 
the  community,  grew  to  a  degree  the  right  of  Crown 
ownership  in  and  to  all  such  lands  so  described. 

We  therefore  find  in  the  course  of  time  that  the 
great  forests  were  recognized  as  the  property  of  the 
Crown,  and  that  the  Crown  controlled  therein  "the 
hunting  and  the  hawking."  We  also  find  the  navi- 
gable rivers  spoken  of  as  the  "royal  rivers,"  because 
of  the  fact  that  the  sovereign  owned  the  river  bottoms 
of  navigable  streams  as  a  part  of  the  vast  area  of  "the 
vacant  and  unappropriated  lands"  of  the  realm. 
"And  he  was  the  only  one  who  could  defend  the  same, 
by  his  mighty  army  and  mighty  fleet." 

We  also  discover  as  a  fully  recognized  fact  of  early 
English  history  and  laws  that  the  seas  were  "royal 
seas"  and  that  the  titles  to  the  bottoms  of  the  bays, 


ENGLISH  CROWN  GRANTS  23 

seas  and  in  fact  the  bottoms  of  all  tidal  waters  in  the 
realm  were  vested  in  the  English  Crown. 

The  universal  existence  of  some  form  of  propri- 
etorship, law  and  government  is  a  natural  and  funda- 
mental concept  of  the  well  organized  and  balanced 
mind. 

It  will  be  seen  that  under  colonial  conditions,  at  the 
period  of  the  American  colonization,  the  King  of  Eng- 
land, by  the  natural  descent,  growth  and  development 
of  a  primitive  legal  system,  which  was  brought  to 
England  from  continental  Europe,  owned  all  the  un- 
granted  lands  under  navigable  waters  in  the  Thirteen 
Original  American  Colonies.  The  doctrine  included 
Crown  ownership  of  the  vacant  and  unappropriated 
uplands,  together  with  the  fishery  rights  and  the  un- 
granted  hawking  and  hunting  privileges  of  the  Eng- 
lish realm.  This  Crown  ownership  in  England  was 
exclusive  of  folklands,  communal  lands  and  the  pri- 
vate and  communal  rights  there  incident  and  pertain- 
ing thereto.  The  title  to  the  communal  lands  in  Eng- 
land was  held  by  the  Crown  in  trust  for  the  people, 
but  with  power  to  grant  the  same. 

It  is  a  fundamental  principle  that  the  ultimate 
title  of  all  lands  of  every  kind  and  nature  is  vested 
in  the  Sovereign  power.  In  monarchical  countries  that 
ultimate  right  is  vested  in  the  King,  while  in  demo- 
cratic countries  it  is  vested  in  the  legislative  power, 
which  represents  the  people. 

The  original  and  ultimate  title  of  all  lands  vested 
in  the  Sovereign,  rests  upon  the  theory  that  he  or  it 
represents  the  Divine  source  of  power  and  that  the 
sovereign's  life  and  property  will  always  be  available 


24  ENGLISH  CROWN  GRANTS 

in  the  defense  of  the  lives  and  property  of  his  loyal 
subjects. 

Blackstone  enunciated  this  doctrine  when  he  said, 
"The  King  is  esteemed  in  the  eyes  of  the  law  as  the 
original  proprietor  of  all  the  lands  in  the  kingdom." 

That  principle  is  set  forth  by  another  authority  as 
follows : 

"Under  common  law  principles,  all  lands  with- 
"in  the  state  are  held  directly  or  indirectly  by  the 
"King  as  Lord  paramount  or  supreme  proprie- 
"tor:  to  him  every  occupant  of  the  land  owes 
"fidelity  and  service  of  some  kind  as  the  neccs- 
"sary  condition  of  his  occupance." 

The  above  theory  holds  in  the  United  States  and 
is  but  the  re-affirmation  of  principles  which  prevail  in 
England  and  in  fact  in  all  countries  with  well  estab- 
lished legal  systems.  In  America,  however,  the  doc- 
trine of  the  divine  right  of  kings  has  been  repudiated. 
The  people  have  seized  the  seat  and  place  of  power. 
They  enthroned,  have  held  firmlv  to  that  higher  al- 
legiance typified  by  the  national  adage,  "In  God  we 
trust." 

It  has  been  clearly  stated  by  competent  authorities 
that, 

"In  this  country  the  people  in  their  corporate 
"capacity  represent  the  state  sovereignty.  Every 
"man  must  bear  true  allegiance  to  the  State  and 
"pay  his  share  of  the  taxes  required  for  her  sup- 
"port,  as  the  condition  upon  which  alone  he  may 
"hold  land  within  her  boundaries." 

This  right  of  ultimate  ownership  in  the  sovereign 


ENGLISH  CROWN  GRANTS  25 

is  not  simply  a  theory  of  political  economy,  but  is 
most  clearly,  frequently  and  very  drastically  put  into 
force  and  effect  in  all  civilized  countries,  so  that  its 
practical  character  is  now  indisputable. 

A  citizen  who  violates  the  supreme  law  of  the  land 
may  not  only  be  restrained  of  his  personal  liberty,  but 
as  a  further  penalty,  his  property,  both  real  and  per- 
sonal, may  be  forfeited  to  the  State,  as  the  supreme 
power. 

When  a  citizen  is  guilty  of  treason  against  the  Gov- 
ernment under  which  he  resides  and  to  which  he  owes 
allegiance,  his  life  may  not  only  be  forfeited  but  his 
lands  and  personal  property  may  also  be  escheated  to 
the  State, 

If  a  man  dies  without  making  proper  disposal,  by 
will,  of  his  real  and  personal  property,  and  if  at  the 
same  time  such  person  has  no  blood  relatives  or  nat- 
ural heirs,  all  of  his  property  immediately  reverts  to 
the  State  as  the  ultimate  owner  or  proprietor. 

In  fact,  a  citizen's  right  to  inherit  and  his  right  to 
bequeath  are  but  ^J^juyj^  rights  and  privileges,  which, 
if  repealed  would  in  one  generation  vest  the  title  to  all 
property  in  the  Sovereign  power. 

It  has  been  stated  as  a  fact  of  history  and  it  has 
also  been  judicially  determined  by  the  American  and 
English  courts  of  last  resort  that, 

"The  American  Colonists  brought  with  them 
"from  England  the  English  Common  Law  and 
"Code,  in  so  far  as  the  same  were  adapted  to  the 
"conditions  on  the  American  continent.  (Grant 
"bv  Charles  II,  King  of  England,  to  James,  the 
"Duke  of  York  and  Albany,  on  March  i2th, 
"1664). 


26  ENGLISH  CROWN  GRANTS 

To  what  extent  early  American  conditions  might 
have  modified  the  Common  Law  practice  of  England, 
when  the  same  was  applied  in  the  Western  Hemi- 
sphere, is  readily  ascertained  by  reference  to  the  num- 
erous decisions  of  the  English  and  Provincial  Courts, 
during  the  American  Colonial  period  prior  to  the 
Revolutionary  War.  Such  decisions  are  remarkably 
in  harmony  with  the  very  clear  and  lucid  deliverances 
of  the  American  State  and  Federal  Courts,  subsequent 
to  the  Revolution,  when  judicially  passing  upon  ques- 
tions involving  English  and  American  Common  law. 


STATEN  ISLAND 

AND 

CROWN  GRANTS 

The  English  Crown  claimed  the  lands  on  the  At- 
lantic coast  covered  by  Sebastian  Cabot's  discovery. 
International  law  fully  concedes  this  claim  which 
vested  jurisdiction  over  the  lands  In  the  English 
Crown  by  the  right  of  discovery. 

There  has  been  much  discussion  as  to  what  extent 
the  English  Crown  owned  Colonial  lands  as  its  own 
private  property  and  to  what  extent  the  English 
Crown  held  such  land  In  trust  for  the  people. 

There  has  been  considerable  flexibility  in  the  judi- 
cial decisions  as  to  where  the  Crown  private  owner- 
ship ended  and  the  Crown  Trusteeship  commenced. 
No  authority  denies  the  right  of  private  ownership 
by  the  Crown  in  Crown  lands,  or  the  fact  of  owner- 
ship of  other  lands  In  England  by  the  Crown  in  trust 
for  the  people.  Where  is  the  line  of  demarkation  to 
be  drawn? 

Be  that  as  It  may,  certain  facts  stands  out  clearly, 
distinctly  and  prominently  In  connection  with  Crown 
lands  in  the  State  of  New  York  and  particularly  as 
to  the  Crown  lands  of  Staten  Island.  No  ambiguity 
or  uncertainty  can  prevail  as  to  the  regularity  and 
legality  of  the  English  Crown  Grants  made  to  lands 
in  the  State  and  especially  on  Staten  Island. 

27 


28  ENGLISH  CROWN  GRANTS 

Using  Staten  Island  as  an  illustration  of  the  exer- 
cise of  the  English  Sovereign  Power  in  the  making  of 
Crown  Grants,  the  facts  and  circumstances  relating 
thereto  furnish  probably  the  best  and  most  complete 
example  of  English  Crown  Grants  which  can  be 
drawn  from  Colonial  history. 

Staten  Island  was  included  in  the  Cabot  Discovery 
which  gave  dominion  to  the  English  Crown  by  right 
of  discovery.  Staten  Island  was  included  in  the  con- 
quered territory  obtained  by  the  English  in  the  war 
with  the  Dutch,  which  gave  political  sovereignty  over 
Staten  Island  to  the  English  Crown,  by  the  right  of 
conquest. 

Thereupon  the  English,  as  was  their  invariable 
custom  in  America,  recognized  the  Indian  inhabitants 
of  Staten  Island  as, 

"The  very  true,  sole  and  lawful  Indian  own- 
"ers  of  ye  said  island,"  and 
"as  derived  to  them  by  their  ancestors." 

The  Duke  of  York,  who  subsequently  became 
James  II,  King  of  England,  by  a  fair  bargain  and  for 
good  and  valuable  considerations,  purchased,  on  April 
13th,  1670,  the  soil  of  Staten  Island  from  the  Indian 
inhabitants.  The  terms  of  that  fair  and  equitable 
bargain  were  fully  explained  and  the  same  were  well 
understood  by  the  native  Indians.  That  honorable 
and  very  business  like  transaction  gave  title  to  the 
Duke  of  York  by  the  right  of  purchase. 

The  ceremony  carried  out  in  connection  with  the 
said  purchase  is  fully  set  forth  in  "THE  MAJOR 
AND  THE  QUEEN",  (page  12)  and  need  not  be 
referred  to  herein,  excepting  only  to  show  that  the 


ENGLISH  CROWN  GRANTS  29 

Indians  received  full,  complete  and  satisfactory  pay- 
ment therefor,  after  which  they  vacated  Staten  Island 
without  a  murmer,  giving  to  the  English  full  and 
complete  possession  thereof  (THE  MAJOR  AND 
THE  QUEEN,  page  16). 

It  may  be  referred  to  as  a  further  interesting  fact 
that  for  many  years  thereafter  and  on  or  about  the 
anniversary  of  the  sale  above  mentioned,  surviving 
representatives  of  the  Indian  tribes,  which  had  deliv- 
ered possession  of  Staten  Island  to  the  English,  called 
upon  the  Crown  representatives  in  Manhattan  and 
reaffirmed  their  satisfaction  with  the  sale  so  made 
and  their  continued  friendship  for  the  English  Crown. 

When  James  the  Duke  of  York,  succeeding  his  bro- 
ther, Charles  II,  became  James  II,  King  of  England, 
Staten  Island,  which  he  had  purchased  of  the  Indians, 
became  a  portion  of  the  private  estate  of  the  English 
Crown,  or  private  Crown  lands. 

It  would  be  utterly  impossible  to  frame  a  single 
possible  objection  to  the  perfect  and  complete  private 
title  to  Staten  Island  received  and  held  by  the  Duke 
of  York  and  retained  by  him  as  personal  Crown  land 
when  he  ascended  the  throne  of  England.  He  owned 
Staten  Island  before  he  became  King  and  his  inherit- 
ance of  the  Crown  from  his  brother  could  by  no 
means  work  a  forfeiture  of  title  to  lands  which  he 
had  previously  purchased,  nor  could  It  automatically 
mersfe  the  KIno['s  personal  title  Into  that  of  the  State. 

After  the  purchase  of  Staten  Island  from  the 
Indians  and  the  accession  of  the  Duke  of  York  to 
the  throne  of  England,  English  Crown  land  Grants 
v.-ere  made  In  due  form,  to  various  individuals  and 
covering  every  acre  of  land  on  Staten  Island,  "with- 


30  ENGLISH  CROWN  GRANTS 

in  the  bounds  and  limits  of  the  County  of  Richmond." 
The  Grants  were  always  made  as  of  the  Crown's  pri- 
vate "Manor  of  East  Greenwich,  in  the  County  of 
Kent,  England,"  of  which  Manor  Staten  Island 
formed  a  part. 

The  boundaries  of  Staten  Island  and  the  boundar- 
ies of  Richmond  County  in  the  State  of  New  York 
have  always  been  coextensive. 

These  boundaries  were  originally  established  by 
the  English  Government  and  subsequently  by  the 
states  of  New  York  and  New  Jersey  in  co-operation 
with  the  Federal  Government. 

There  is  not  one  square  foot  within  those  boundar- 
ies that  was  not  the  subject  matter  of  and  which  was 
not  clearly  included  in  a  good  and  valid  English 
Crown  Grant. 

The  records  of  the  State  of  New  York,  as  herein 
before  stated,  disclose  a  large  number  of  Crown 
Grants  of  Staten  Island  lands,  issued  to  various 
parties.  These  Grants,  exclusive  of  the  last  and  final 
Grant,  were  originally  intended  to  cover  about  one 
half  of  Staten  Island.  The  last,  final  and  inclusive 
Grant,  issued  to  Lancaster  Symes,  covered  all  of  the 
remaining  lands  on  Staten  Island,  together  with  va- 
rious rights  appertaining  thereto  and  at  that  time  be- 
longing to  the  English  Crown  and  which  had  been 
purchased  of  the  Indians  by  the  Duke  of  York  on 
April  13th,  1670. 

Each  and  every  Grant  by  the  English  Crown,  of 
lands  on  Staten  Island,  provided  in  effect  by  its  terms 
that  the  lands  so  granted  should  be  "Hold-in  of  us 
our  heirs  and  successors  in  free  and  common  soccage 


ENGLISH  CROWN  GRANTS  31 

as  of  our  Manor  of  East  Greenwich,  in  the  County  of 
Kent,  within  our  realme  of  England." 

This  final  Grant  to  Lancaster  Symes,  was  issued 
by  the  Crown  itself  in  the  person  of  Queen  Anne  and 
was  confirmed  by  the  Council  and  by  the  Governor 
General  of  the  Province  of  New  York.  It  was  after- 
wards ratified  and  confirmed  by  the  State  of  New 
York.  (1816). 

The  Grant  made  to  Lancaster  Symes  closed  out  to 
him  all  of  the  remaining  rights  of  the  English  Crown 
in  land  both  above  and  below  the  water  on  Staten 
Island  and  within  the  limits  and  bounds  of  Rich- 
mond County  in  the  State  of  New  York,  except- 
ing only  the  ultimate  ownership  of  the  Crown  in  the 
lands  as  Sovereign  and  the  right  to  receive  quit- 
rents  from  and  under  the  Crown  Grants  issued. 

It  should  be  borne  in  mind  that  each  and  every 
Crown  Grant  made  by  the  English  Sovereign  to 
lands  on  Staten  Island  was  subject  to  the  payment 
of  annual  quit-rents  by  the  Grantee  to  the  Crown. 

These  quit-rents  though  payable,  for  convenience, 
in  New  York  City,  were  in  fact  a  part  of  the  Crown's 
private  income  from  its  Manor  of  East  Greenwich 
in  the  County  of  Kent  in  England. 

The  officials  of  the  English  Government  were 
originally  the  house  servants  of  the  English  Crown. 
They  gradually  assumed  the  duties  of  public  officials. 
Hence  the  Crown's  personal  accounts  were  kept  In 
the  books  of  State  under  the  doctrine  of  "My 
Government," — "My  people." 

These  facts  of  history  should  satisfy  any  Inquirer 
as  to  the  complete  and  perfect  title  originally  vesting 
In  the  English  Crown,   and  Its  supreme  right  and 


32  ENGLISH  CROWN  GRANTS 

power  to  retain,  lease  or  sell  any  part  or  all  of  Statcn 
Island  as  fully  and  freely  as  it  could  any  part  or  all 
of  its  Manor  of  East  Greenwish  in  the  County  of 
Kent,  England,  of  which  it  formed  a  part,  or  as  any 
other  property  holder  had  the  right  to  do  with  his 
own  personal  manorial  property  or  real  estate. 

Blackstone  said,  "The  Third  Right  inherent  in 
every  Englishman  is  that  of  property,  which  consists 
in  the  free  use,  enjoyment  and  disposal  of  all  his  ac- 
quisitions, without  any  control  or  diminuition,  save 
only  the  laws  of  the  land."  If  the  old  proverb  be 
true  that  "a  serv^ant  is  not  greater  than  his  Lord," 
surely  it  must  be  true  that  a  sovereign  has  at  least 
equal  rights  with  his  servant  in  his  own  personal  es- 
tate. 

The  consideration  for  the  final  Grant  by  the 
Crown  to  Lancaster  Symes  was  ample.  The  com- 
bined power  and  authority  of  the  Crown,  the  Pro- 
vinces and  the  Council  were  represented  in  the  Grant 
to  Lancaster  Symes  and  to  his  heirs  and  assigns  for- 
ever. It  is  conclusive  on  the  theory  that  the  English 
Crown  held  the  lands  as  a  part  of  its  own  personal 
estate  as  Crown  lands;  also  on  the  false  theory  that  it 
held  the  same  as  Crown  lands  in  trust  for  the  English 
People.  The  Grant  to  Lancaster  Symes  was  issued  by 
both  Crown  and  people  and  its  validity  is  incontesta- 
ble. It  was  subsequently  ratified  and  confirmed  by 
the  State  of  New  York  upon  the  commutation  of 
quit-rents  thereunder  by  the  State.  (See  Books  of 
Quits-Rents,  State  Comptroller's  office,  Albany, 
Docket  48,  page  106.) 

Furthermore  the  English  Crown  had  most  certainly 
the  right  to  make  the  Grant  to  Lancaster  Symes  under 


ENGLISH  CROWN  GRANTS  33 

the  title  which  obtained  by  purchase  from  the  Indian 
inhabitants,  there  having  been  paid  therefor  a  large 
and  mutually  satisfactory  purchase  consideration. 
The  personal  purchase  from  the  Indian  owners  by 
the  Duke  of  York  had  added  Staten  Island  to  the  per- 
sonal estate  of  the  English  Crown.  It  was  at  all  times 
held  thereafter  as  of  the  Crown  Manor  of  East 
Greenwich,  England. 

In  fact  each  and  every  Grant  made  by  the  English 
Crown  on  Staten  Island  is  based  upon  as  solid  founda- 
tions as  were  or  could  be  laid  to  colonial  titles. 

The  issue  of  the  Lancaster  Symes  Grant  by  the 
Crown,  its  confirmation  under  the  Great  Seal  of  the 
Province  of  New  York  and  its  reaffirmation  through 
commutation  of  quit-rents  by  the  State  of  New  York 
renders  the  Grant  incontestable. 

During  several  centuries  prior  to  the  American 
Revolution  the  precise  relation  of  the  Crown  to 
various  classes  of  what  were  then  designated  as 
Crown  lands,  varied  in  accordance  with  the  supremacy' 
from  time  to  time  of  the  monarchical  or  democratic 
influences  in  governmental  control  of  the  affairs  of 
England. 

It  is,  however,  a  singular  fact  that  during  the 
reigns  of  the  various  sovereigns  from  1670  to  1776 
A.  D.,  and  notwithstanding  the  many  changes  of 
English  dynasties,  the  attitude  of  Parliament  and  the 
decisions  of  the  Higher  courts  of  England  relating 
to  Colonial  Crown  lands,  were  in  accord  with  the  gen- 
eral principles  of  crown  ownership  of  lands  which 
prevailed  at  the  time  of  the  separation  of  the  Ameri- 
can Colonies  from  Great  Britain. 

It  should  be  constantly  borne  in  mind  by  the  stu- 


34  ENGLISH  CROWN  GRANTS 

dent  of  Crown  Grants  and  by  all  persons  interested  in 
the  descent  of  titles  therefrom,  that  rights  obtained 
under  any  Grant  made  by  the  English  Crown  to  lands 
in  America  must  be  determined  by  the  English  com- 
mon law  governing  the  same  at  the  time  of  such  issue. 

In  other  words,  every  Crown  Grant  must  be  read 
and  construed  under  the  customs  prevailing  at  the 
time  of  its  issue,  and  its  verbiage  must  be  interpreted 
and  construed  according  to  the  then  legal  force  and 
effect  of  the  words  and  phrases  used  at  the  time  of  the 
Grant. 

This  doctrine  has  been  repeatedly  enunciated  by 
the  American  Courts,  as  judicial  opinions  have  harked 
back  to  and  have  defined  and  determined  the  rights 
and  privileges  intended  to  be  and  actually  conveyed  by 
the  Crown  at  the  time  of  the  issue  by  it  of  Colonial 
Crown  Grants  in  America. 

In  no  case  brought  to  bar  in  any  of  our  American 
Courts  relating  to  English  Crown  Grants  has  the  fol- 
lowing state  of  facts  been  fully  involved  and  pleaded, 
and  which  is  true  of  Staten  Island  Grants. 

ist — That  the  English  Crown  (Charles  II)  made 
a  Crown  Grant  to  James,  Duke  of  York, 
covering  and  including  the  lands  in  question, 
with  the  quit-rents  payable  to  the  Crown's 
private  Manor  of  East  Greenwich,  in  the 
County  of  Kent,  England. 

2nd — That  upon  the  death  of  Charles  II,  his  bro- 
ther the  said  James,  Duke  of  York,  inherit- 
ted  as  his  personal  property  the  said  Manor 
of   East   Greenwich,    thereby   merging   the 


ENGLISH  CROWN  GRANTS  35 

title  thereto  into  his  personal  estate,  with 
the  quit-rents  payable  thereto. 

3rd — That  prior  to  the  Duke  of  York's  ascension 
to  his  brother's  throne,  he  had  made  a  pur- 
chase of  the  lands  in  question  from  the  In- 
dian owners  thereof,  so  that  a  perfect  title  in 
fee  by  right  of  purchase  vested  in  him  before 
he  became  sovereign.  Hence  upon  his  ac- 
cession to  the  throne  "the  lands  were  the 
property  of  the  King  and  not  of  the  king- 
dom." 

4th — That  he,  upon  his  accession  to  the  throne  as 
James  II,  king  of  England,  and  his  succes- 
sors granted  all  of  the  lands  on  Staten  Island 
to  private  individuals,  thereby  conveying  to 
various  grantees, 

(a)  All   of   the  personal   Crown   title 
thereto. 

(b)  Any  Imperial  title  therein. 

5  th — That  the  Province  of  New  York  attached  to 
said  Grants  its  Great  Seal,  thereby  binding  it. 

6th — That  the  State  of  New  York,  by  the  com- 
mutation of  quit-rents  confirmed  and  re- 
newed the  final  Grant  and  is  thereby  estop- 
ped from  traversing  it. 

7th — That  the  people  had  no  rights  therein,  and 
had  it  been  otherwise  they  were  closed  out 
by  the  act  of  the  Province  of  the  State  of 
New  York,  and  by  the  State  of  New  York. 


36  ENGLISH  CROWN  GRANTS 

In  the  period  of  approximately  one-half  century 
during  which  all  of  the  Staten  Island  Crown  Grants 
were  issued  by  the  English  Sovereigns,  there  were  no 
changes  in  Parliamentary  law  or  Royal  Practice  af- 
fecting the  integrity  of  Crown  titles  or  their  issue. 
No  changed  attitude  of  the  English  Crown,  no  ad- 
verse decision  of  the  English  Courts,  nor  any  recorded 
protests  on  the  part  of  the  Province  of  New  York,  ap- 
pear of  record  affecting  the  title  of  any  Staten  Island 
lands  Granted  by  the  Crown. 

No  event  of  history  or  legal  enactment  altered  or 
changed  the  character  or  legal  force  and  effect  of  any 
of  the  Staten  Island  English  Crown  Grants  between 
the  dates  of  the  first  Grant  issued  and  the  final  Grant 
to  Lancaster  Symes. 

In  other  words,  every  one  of  such  Crown  Grants 
stands  on  a  parity  with  the  others  as  to  the  general 
authority  under  which  it  was  issued,  the  legal  con- 
struction to  be  put  upon  the  terms,  provisions  and  con- 
ditions specified  therein  and  the  legal  effect  of  the 
language  or  verbiage  used  to  limit  and  define  the  force 
and  effect  of  each  such  instrument. 

The  English  Crown  in  issuing  from  time  to  time, 
Grants  to  land  on  Staten  Island  did,  however,  vary  to 
some  extent  the  terms,  provisions  and  conditions  of 
the  Grants  so  made  by  it. 

This  may  be  illustrated  in  the  two  English  Crown 
Grants  made  by  it  to  Christopher  Billop  in  the  years 
1676  and  1687  respectively. 

In  the  first  one  of  these  Grants,  Christopher  Billop 
was  granted  a  large  tract  of  upland  on  a  part  of  which 
Tottenville  is  now  situated.  This  Grant  was  clearly 
intended  to  be  an  upland  Grant  and  extended  to  high- 


ENGLISH  CROWN  GRANTS  37 

water  mark.  This  latter  limitation  evidently  proved 
unsatisfactory  to  Billop  and  for  apparently  a  very 
good  reason  which  grew  out  of  his  life's  occupation. 

Christopher  Billop  was  a  sailor  and  as  shown  in 
the  book  entitled  "THE  MAJOR  AND  THE 
QUEEN"  (and  in  other  more  elaborate  and  very  ex- 
cellent histories  of  Staten  Island, — by  Ira  K.  Morris, 
R.  M.  Bayles  and  J.  H.  Clute)  Billop  saved  Staten 
Island  for  the  Province  of  New  York  from  the  claims 
which  New  Jersey  made  upon  it  when  the  latter  as- 
serted that  the  Island  geographically  belonged  to  that 
Province. 

This  feat  was  accomplished  when  Billop  demon- 
strated his  ability  to  sail  around  Staten  Island  in 
twenty-four  hours.  The  fact  that  Staten  Island  could 
be  circumnavigated  in  that  time  brought  Staten  Island 
within  the  time  limit  of  collections  from  the  New 
York  Custom  House. 

Christopher  Billop  was  a  sailor;  his  home  was  on 
land,  but  he  loved  and  roved  the  seas.  When  the 
English  Governor  General  rewarded  Billop  for  his 
services  in  securing  the  claims  of  the  Province  of  New 
York,  by  granting  him  land  on  Staten  Island,  it  was 
natural  that  Billop  should  desire  and  receive  the  point 
of  land  extending  farthest  out  into  the  waters  and 
which  by  its  location  and  outlook  would  appeal  most 
to  a  sailor's  heart. 

When  Billop  received  his  first  Grant,  its  limits  and 
bounds  on  the  waters  were  to  high  water  mark.  If 
BIllop's  lands  extended  only  to  high  water  mark,  and 
Billop  had  undertaken  to  land  his  boat  at  low  tide, 
he  would  have  been  a  tresspasser  upon  the  land  be- 
tween high  and  low  water  mark.    Consequently  at  all 


38  ENGLISH  CROWN  GRANTS 

times,  excepting  at  high  water,  Billop  would  have  been 
compelled  to  float  his  boat  at  sea  waiting  for  the  full- 
ness of  the  tide  to  lawfully  bring  himself  and  his 
cargoes  to  shore.  Nor  could  he  construct  a  dock  that 
would  not  have  been  "left  high  and  dry"  at  ebb  tide. 

Such  a  situation  practically  placed  an  awkward 
barrier  between  the  sailor's  home  and  the  sailor's 
ship.  We  learn,  therefore,  from  the  records  that  Bil- 
lop obtained  a  second  Grant  from  the  Crown,  which 
Grant  covered  all  the  lands  previously  granted  by  the 
Crown  to  Billop,  but  added  considerable  acreage 
thereto.  This  increase  included  favorable  coves  for 
the  landing  of  boats  west  of  the  southern  point  of 
the  Island  and  also  Billop's  lands  to  low  water  mark. 

Under  this  latter  arrangement  Billop's  Harbor 
facilities  were  greatly  improved  and  his  ability  to 
bring  to  shore  his  boats  on  any  and  every  tide  was 
assured. 

It  is  well  to  notice  here  that  the  English  Crown 
changed  the  shore  front  lines  for  Billop  because  of 
the  fact  that  there  was  a  good  and  sufficient  reason  for 
it  so  to  do.  The  change  was  one  resulting  from  an 
expressed  reason,  was  made  upon  due  reflection  and 
to  meet  an  equitable  demand  based  upon  a  commer- 
cial need. 

No  "riparian  right"  accrued  or  inured  to  Billop  by 
which  he  could  accept  a  Grant  of  the  Crown's  uplands 
and  then  compel  the  Crown  to  grant  him  more  land 
on  the  shore.  No  such  "Riparian  right"  inured  to 
Billop  as  against  the  Crown,  or  to  any  other  citizen 
in  the  British  realm. 

Especially  is  this  indisputably  true  when  it  relates 
to  lands  privately  purchased  by  the  Duke  of  York  of 


ENGLISH  CROWN  GRANTS  39 

the  Indians  and  added  to  the  Crown's  private  lands 
against  which  no  presumption  of  title  could  avail. 

This  denominated  Riparian  Right  is  a  later  doc- 
trine applied  to  Staten  Island  by  minds  unacquainted 
with  English  Common  Law  in  the  Colonial  period 
and  the  then  rights  of  the  English  Crown.  Staten 
Island  was  a  part  of  the  Crown's  personal  estate.  It 
was  property  purchased.  It  was  attached  to  a  private 
Crown  Manor.  All  Grants  were  construed  favorably 
for  the  Crown  and  against  the  Grantee,  excepting  as 
shown  herein  in  the  "analysis  of  a  Crown  Grant." 

The  Monarchical  theory  as  to  the  sacred  rights  of 
the  King  precluded  a  subject  from  receiving  and  ac- 
cepting a  Crown  Grant  of  lands  with  fixed  limitations 
and  boundaries  and  then  by  implication  asserting  a 
lien  or  a  "riparian  right"  to  more  of  the  Crown  lands 
than  were  included  in  the  description  contained  in  the 
Grant.  The  lesser  title,  that  of  the  subject,  could  not 
assert  itself  over  the  higher  or  greater  title,  that  of 
the  Sovereign. 

While  the  Crown  was  in  a  generous  mood,  it  dealt 
even  more  liberally  with  Billop  than  appears  alone 
by  acres  and  shore  privileges.  In  the  second  Grant 
to  him,  it  authorized,  in  elaborate  detail,  the  founding 
or  establishment  for  him  of  the  Bentley  Manor.  The 
Crown  Grants  to  Billop  are  interesting  instruments 
and  were  issued  along  the  lines  consistent  with  the 
establishment  of  Manors  in  England. 

While  the  founding  of  the  Manor  of  Bentley  was 
a  departure  as  to  jurisdiction  from  the  ordinary 
Crown  Grants  issued  on  Staten  Island,  the  authority 
to  make  the  Grant,  the  interest  given  to  Billop  in  the 


40  ENGLISH  CROWN  GRANTS 

lands  and  the  legal  basis  of  the  title  to  lands  so 
granted  to  Billop,  were  the  same  as  to  all  other  lands 
granted  on  Staten  Island.  The  authority  given  to 
Billop  to  exercise  certain  manorial  rights  and  priv- 
ileges within  the  limits  and  bounds  of  his  Grant  had 
no  bearing  whatever  on  the  rights  granted  by  the 
Crown  to  the  lands  underlying  the  same.  The  two 
are  separate  and  distinct.  Manorial  rights  are  those 
of  jurisdiction  only,  while  land  Grants  are  rights  of 
proprietorship. 

Manorial  rights,  privileges  and  authority  were 
swept  away  by  the  triumphs  of  democracy  in  the 
American  Revolution,  but  rights  of  property  were  not 
affected  thereby. 

Under  the  indisputable  rights  acquired  by  purchase 
from  the  Indian  proprietors,  Staten  Island  was 
owned  in  fee  as  personal  Crown  property. 

Staten  Island  might  have  been  held  as  a  part  of 
the  private  estate  of  the  Crown,  its  title  thereby  de- 
scending from  Sovereign  to  Sovereign,  by  right  of 
personal  inheritance  in  the  same  manner  as  the  Crown 
descends.  It  might  have  been  granted  by  the  Crown 
to  some  one  grantee  of  the  Crown  as  a  manor.  This 
was  done  in  the  case  of  Gardiner's  Island,  at  the  East 
end  of  Long  Island,  by  an  English  Crown  Grant  to 
Lyon  Gardiner.  This  latter  magnificent  estate,  so 
granted  in  its  entirety,  has  descended  from  genera- 
tion to  generation  in  the  Gardiner  family  even  unto 
this  day. 

The  English  Crown,  however,  for  the  purpose  of 
developing  the  Province  of  New  York,  as  is  clearly 
set  forth  by  it  in  some  of  its  Grants  to  lands  on  Staten 
Island,  made  Grants  thereon  to  more  than  one  hun- 


ENGLISH  CROWN  GRANTS  41 

dred  and  fifty  grantees,  of  which  number  the  final 
and  inclusive  Grant  was  made  to  Lancaster  Symes. 

There  are  certain  prominent  and  conspicuous  feat- 
ures displayed  in  the  various  Grants  issued  by  the 
Crown  to  lands  on  Staten  Island.  The  lands  in  each 
case  are  especially  described  by  metes  and  bounds,  and 
the  Grants  are  in  themselves  proof  positive  that  the 
English  Crown  at  that  time,  or  during  the  period  in 
which  the  series  of  Grants  were  Issued,  had  a  definite 
and  accurate  survey  of  Staten  Island. 

The  many  references  to  varying  and  natural  fea- 
tures on  the  surface  of  the  lands  so  granted,  as  shown 
in  the  respective  Grants,  clearly  prove  the  Crown's 
intimate  knowledge  of  the  topography  and  exact  lo- 
cation of  such  features  on  the  surface  of  Staten  Isl- 
and. 

This  is  in  strange  contrast  with  the  expressed  pub- 
lic opinion,  prevailing  for  several  generations  past, 
to  the  effect  that  no  survey  by  the  English  Crown  had 
ever  been  made  of  Staten  Island.  In  this  case  may 
not  "the  wish  have  been  father  of  the  thought"  on  the 
part  of  some  who  occupied  lands,  their  titles  to  which 
could  not  be  traced  back  to  any  English  Crown 
Grant? 

The  theory  that  no  survey  of  Staten  Island  was 
made  in  Colonial  Days  has  been  completely  exploded 
by  the  investigation  made  through  a  long  period  of 
time  and  at  large  expense  by  the  American  Title  and 
Trust  Company,  of  Wilmington,  Delaware,  now  so 
largely  Interested  in  property  holdings  on  Staten  Is- 
land. 

This  latter  Company  discovered  In  England  and 
now  has  In  Its  possession  among  its  large  collection  of 


42  ENGLISH  CROWN  GRANTS 

Staten  Island  Maps,  an  English  survey  of  Staten  Is- 
land, made  by  the  British  Government  prior  to  the 
American  Independence  showing  the  water  fronts  and 
uplands  on  Staten  Island.  It  sets  forth  in  varied  and 
distinctive  colors  the  then  existing  meadows,  marshes, 
hills,  highways,  private  roads,  houses,  lakes,  ponds, 
bays,  rivers  and  seas.  The  Map  is  drawn  to  scale 
and  contains  the  compass  and  the  then  variation  of 
the  magnetic  pole.  It  is  a  superb  piece  of  workman- 
ship and  displays  a  painstaking  care  as  to  details 
which  might  well  challenge  the  admiration  and  envy 
of  the  employees  of  many  modern  surveyor's  offices 
were  they  called  upon  to  duplicate  this  map  by  an 
original  survey- 
In  addition  to  the  important  general  survey  re- 
ferred to,  the  American  Title  and  Trust  Company 
has  also  secured  from  official  sources  a  map  of  Staten 
Island  prepared  by  Government  officials  and  which 
map  locates  each  and  every  English  Crown  Grant 
issued  for  lands  on  Staten  Island. 

Each  Crown  Grant  is  clearly  defined  thereon  by 
metes  and  bounds.  A  compass  and  the  variation  of 
the  magnetic  needle  is  also  clearly  shown  thereon. 

In  addition  to  the  foregoing  maps,  the  American 
Title  and  Trust  Company  has  also  sought  out,  found 
and  acquired  a  vast  numbenof  official  surveys  of  the 
shores  and  the  uplands  of  Staten  Island. 

Through  this  wealth  of  accumulated  and  authori- 
tative data,  commencing  with  a  survey  of  the  shore 
fronts  of  Staten  Island  in  the  year  I728  and  extend- 
ing at  intervals  down  to  the  present  time,  together 
with  field-notes  and  field-maps  of  almost  inestimable 
value,  the  American  Title  and  Trust  Company  is  able 


ENGLISH  CROWN  GRANTS  43 

to  locate  and  map  the  Crown  Grant  underlying  any 
single  building  lot  on  Staten  Island. 

It  may  be  thought  by  some  that  the  English  Crown 
did  not  in  fact  own  Staten  Island  as  a  part  of  its  pri- 
vate estate.  They  may  even  question  Staten  Island's 
vital  connection  with  the  Royal  Manor  of  East  Green- 
wich in  the  County  of  Kent,  and  may  also  insist  that 
the  Crown  lands  on  Staten  Island  shall  be  treated  as 
public  Crown  lands.  They  may  urge  that  the  char- 
acter of  the  lands  shall  determine  which  were  held 
as  personal  property  of  the  Crown  and  which  were 
held  in  trust  for  the  people. 

This  is  but  a  little  longer  route  by  which  we  will 
reach  the  same  final  conclusion  as  obtained  by  the 
shorter,  more  direct  and  correct  theory  of  absolute 
private  ownership  by  the  English  Crown  of  every 
square  foot  of  land  on  Staten  Island.  This  ownership 
includes  uplands,  meadows,  marshes,  streams,  shore- 
fronts  and  lands  between  high  and  low  water  mark 
and  submerged  lands  to  the  very  last  limit  and  bounds 
of  Richmond  County. 

Under  such  an  incorrect  theory  of  representative 
Crown  ownership  certain  questions  will  naturally  pre- 
sent themselves.  What  was  then  the  character  of 
the  English  Crown  Grants  as  issued?  What  lands, 
if  any,  under  such  conditions  could  have  been  granted 
by  the  Crown  in  its  own  right,  as  the  actual  owner 
thereof,  and  what  lands,  if  any,  could  have  been 
granted  by  the  Crown,  the  title  to  which  it  held  in 
trust  for  the  people? 

Furthermore,  the  natural  inquiry  might  arise  as  to 
whether  there  is  any  question  or  doubt  as  to  the  ac- 
tual legal  right  and  power  of  the  Crown,  when  hold- 


44  ENGLISH  CROWN  GRANTS 

ing  title  to  land  in  trust  for  the  people,  to  grant  the 
same  to  private  individuals  with  or  without  the  con- 
sent of  the  people  fully  and  formally  expressed? 

In  response  to  these  very  proper  and  pertinent 
questions,  arising  from  a  misconception  of  the  com- 
plete title  to  and  power  over  Staten  Island  lands 
vested  in  the  Crown,  the  facts  of  history  and  the  de- 
cisions of  courts  of  proper  jurisdiction  completely 
meet  the  situation. 

We  have  clearly  and  repeatedly  stated  that  the 
Enf^lish  Crown  held  a  perfect  title  to  Staten  Island 
by  direct  purchase,  which  fact  legally  settles  once  and 
for  all  the  foregoing  inquiries.  Were  that  fact  not 
established  and  if  the  basis  of  every  title  to  lands  on 
Staten  Island  depended  upon  the  acquiescence  of  the 
people  in  any  and  all  Grants  thereof  such  objection  is 
fully  met  upon  examination  of  the  original  Grants 
made  by  the  Crown  to  Staten  Island  lands.  No 
Crown  Grant  to  lands  on  Staten  Island  has  ever  been 
judicially  voided  and  the  people  acquiesced  in  and 
recognized  the  binding  force  and  effect  of  each  such 
Sovereign  Grant. 

As  a  proposition  of  law  lands  are  considered  and 
designated  real  property  without  regard  to  whether 
the  same  are  uplands  or  submerged.  The  fact  of  the 
presence  of  water  upon  the  surface  of  a  tract  of  land 
does  not  in  any  wise  legally  alter  its  character  as  land. 

A  Crown  Grant  to  all  the  lands  within  the  bounds 
and  limits  of  a  County  covers  all  the  soil  within  such 
County  whether  part  of  the  same  is  lifted  up  in  hills 
a  hundred  feet  above  sea-level  or  is  sunk  beneath  the 
sea  a  hundred  feet  deep.  In  the  eyes  of  the  law, 
land  is  land  regardless  as  to  whether  it  carries  on  its 


ENGLISH  CROWN  GRANTS  45 

surface  soil,  sand  or  sea.  It  is  simply  a  question  as 
to  whether  such  land  is  included  in  the  description 
contained  in  the  deed  and  whether  the  Grantor  has 
power  to  convey. 

The  waters  themselves  independent  of  the  land 
and  composing  the  seas,  bays  and  navigable  rivers  are 
not  the  subject  of  private  ownership.  It  has  been 
judicially  settled  for  generations  that  the  sea,  bays 
and  navigable  rivers  are  highways  of  commerce,  free 
to  the  use  of  all  citizens  of  the  country  having  juris- 
diction thereover.  Commerce  thereon  may  be  regu- 
lated by  and  in  the  interest  of  the  nation,  but  the  sea 
itself,  that  is  the  waters  thereof,  can  belong  to  no  man 
as  an  individual  proprietor. 

It  has  been  clearly  determined  that  the  Sover- 
eign while  owning  the  lands  under  navigable  waters, 
as  a  part  of  the  vacant  and  unappropriated  lands  of 
the  realm,  can  have  no  private  ownership  of  the  navi- 
gable waters  themselves.  "The  flow  of  water  in  the 
stream  of  a  navigable  river  is  in  no  sense  private  prop- 
erty." "Private  right  to  running  water  in  a  great 
navigable  stream  is  inconceivable."  (Boviere  Navi- 
gable Waters.) 

The  former  rights  of  the  Crown  to  the  uplands 
of  Staten  Island  as  a  part  of  the  vacant  and  unappro- 
priated lands  of  the  realm  was  not  and  cannot  now 
be  successfully  questioned.  The  facts  thereof  arc 
too  patent  and  the  judicial  decisions  are  too  clear  and 
conclusive  to  even  admit  of  argument  in  relation 
thereto.  Were  it  otherwise  overwhelming  confusion 
and  chaos  would  exist  in  relation  to  the  basis  of 
substantially  all  titles  not  only  on  Staten  Island  but 
in  all  of  our  Eastern  States. 


46  ENGLISH  CROWN  GRANTS 

Discussion  has  occasionally  arisen  in  respect  to  the 
character  of  the  title  originally  held  by  the  English 
Crown  to  the  lands  between  high  and  low  water- 
mark on  our  Eastern  tidal  coast. 

We  may  state  the  proposition  as  follows : 

Man's  domicil  is  on  land,  but  he  has  an  inherent 
natural  right  to  navigate  the  seas.  Public  necessity, 
therefore,  demands  for  him  a  right  of  approach  to 
and  egress  from  the  waters  of  the  Great  Deep.  To 
exercise  that  right  he  must  traverse  the  shore  between 
high  and  low  water  mark. 

Were  it  otherwise  the  inhabitants  of  an  island  sur- 
rounded by  tidal  waters,  would  be  practically  im- 
prisoned thereon  because  of  the  fact  that  surround- 
ing the  island  there  would  be  a  narrow  belt  of  land 
between  high  and  low  water  mark  owned  by  the 
Crown.  To  impinge  the  keel  of  a  boat  thereon  would 
be  to  violate  the  territorial  integrity  of  the  land  held 
by  the  crown. 

Under  such  conditions  the  inhabitants  of  an  island 
could  only  launch  their  boats  or  approach  the  shore 
at  the  moment  of  the  high  tides  and  then  only  in  a 
boat  of  such  shallow  draft  as  to  be  almost  unnavi- 
gable. 

It  has  therefore  been  exaggeratingly  claimed  as  one 
of  the  basic  principles  of  human  rights  that  the  strip 
of  land  between  high  and  low  water  mark  belongs 
to  the  people.  This  rule  does  not  apply  to  Crown 
lands  or  to  land  granted  by  the  Crown.  It  is  con- 
sidered by  some  as  communal  land  and  is  claimed  to 
be  similar  to  what  was  earlier  herein  described  as  the 
"Commons,"  the  title  being  held  in  the  Crown  as 
trustee  for  the  people.     This  theory  is  contrary  to 


ENGLISH  CROWN  GRANTS  47 

the  governing  decisions  and  especially  untrue  as  to 
Staten  Island. 

A  right  of  egress  and  ingress,  however,  is  possessed 
by  the  people,  but  it  must  be  and  in  the  nature  of 
things  is  a  very  restricted  one.  It  is  a  right  to  go 
down  to  the  sea  in  ships  and  to  return  therefrom.  It 
was  a  right  of  "access  to"  and  the  right  of  "egress 
from"  the  waters  of  the  Great  Deep.  No  proprietor 
of  said  ribbon  of  land  could  take  possession  thereof  s© 
as  to  interfere  with  the  ingress  and  egress  rights  of 
individuals.  The  theory  of  "No  Man's  Land,  apply- 
ing to  such  an  important  shore  line,  and  when  applied 
to  any  land  is  repugnant  to  law  and  contrary  to  good 
government,  hence  the  title  thereof  was  vested  in  the 
Crown  as  Chief  Lord  Proprietor. 

The  argument  is  at  times  advanced  that  the  land 
between  high  and  low  water  mark  is  neither  upland 
nor  submerged  land.  It  has  been  contended  that 
the  Crown  had  no  right  whatever  to  make  any  grants 
thereof  without  the  direct  and  fullest  authority  ex- 
pressly given  to  it  for  such  purpose  by  the  people  or 
by  their  duly  authorized  representatives.  This 
peculiarly  situated  strip  of  land,  under  this  theory, 
is  compared  by  some  to  the  "King's  Highway,"  the 
title  to  which  is  in  the  Sovereign,  but  from  which 
highway  the  public  cannot  be  excluded  or  of  which 
the  public  cannot  be  deprived  by  the  Crown,  except- 
ing in  case  of  great  public  need  or  danger,  or  the 
substitution  of  another  highway  therefor.  A  high- 
way of  travel  and  the  right  of  ingress  and  egress  are 
antipodal. 

On  the  other  hand,  authorities  have  contended  that 
the  title  to  the  land  between  high  and  low  water  mark, 


48  ENGLISH  CROWN  GRANTS 

having  been  conceded  by  the  people,  to  the  Crown, 
it  had  a  full  and  supreme  right  to  make  Grants  there- 
of and  that  the  grantees  were  under  no  obligation 
whatever  to  inquire  into  any  arrangements  or  rela- 
tions between  the  people  and  the  Crown  relating 
thereto.  This  may  be  consistently  based  upon  the 
theory  that  "the  King  can  do  no  wrong."  That  is,  the 
people  having  conceded  the  title  as  being  in  the 
hands  of  the  Crown  to  possess  and  control  the  strip 
of  land  between  high  and  low  water  mark,  as  trustee 
for  the  people,  then  they  were  bound  by  the  acts  of 
their  Sovereign.  This  presumption  agrees  with  the 
Monarchical  doctrine  of  "My  Kingdom." 

The  above  propositions  have  been  at  times 
advanced  by  parties  who  may  have  only  superficially 
examined  into  the  character  and  nature  of  the  English 
Crown's  title  to  and  the  English  Crown  Grants  of 
lands  on  Staten  Island. 

In  the  earlier  periods,  or  "middle  ages,"  when  the 
then  sovereigns  were  given  or  acquired  control  of 
or  title  to  community  lands  (we  do  not  here  refer  to 
the  Crown's  title  to  "vacant  and  unappropriated 
lands")  it  was  customary  for  the  sovereigns  to  make 
Grants  thereof  either  by  Lease  or  otherwise.  All  such 
Grants  of  communal  lands  were  then  made,  however, 
upon  consultation  by  the  sovereign  with  his  Woden 
or  Wiseman. 

In  no  instances  were  tidal  lands  held  as  communal 
lands.  They  were  always  held  to  be  waste  lands 
of  the  realm  with  the  title  thereto  In  the  Crown. 

In  the  combination  of  the  Sovereign  and  the  wise- 
man  we  have  the  crown  representing  itself  and  the 
Woden  advising  independently  of  the  people.     The 


ENGLISH  CROWN  GRANTS  49 

Wiseman  was  soon  thereafter  associated  with  other 
wisemen  and  they,  when  so  combined,  became  the 
King's  Council,  selected  and  appointed  by  the  Sov- 
ereign, without  consultation  with  or  consent  by  the 
people. 

¥vom  this  first  and  simple  relation  of  Crown  and 
Woden,  there  developed  later  on  a  limited  monarchy 
composed  of  the  Crown  and  the  King's  Council  of 
wise-men,  selected  from  and  representing  the  people. 
Then  Parliments  followed  on  an  elective  basis  with  a 
voice  in  the  Government  but  not  as  to  Crown  Grants 
in  the  American  Colonies. 

When  civil  government  was  organized  in  the  Eng- 
lish-American Colonies  the  English  system  of  com- 
mon law  was  transferred  thereto  and  installed  there- 
in. The  distance  and  time  consumed  in  crossing 
the  sea  and  also  in  the  return  voyage,  were  so  great 
that  the  direct  government  of  the  Province  of  New 
York  by  the  Crown  and  direct  legislation  over  it  by 
Parliament  in  England,  were  found  to  be  not  only 
inexpedient  but  absolutely  impracticable. 

Thereupon  a  Governor-General  was  appointed  by 
the  Crown  for  each  American  Province  of  Great 
Britain.  These  Govej:iu2r-Gener3ls  were  to  represent 
and  did  represent  the  Crown  itself  and  Councils  were 
also  appointed  in  the  Province  to  advise  the  Gover- 
nors. 

Later  on  as  the  Province  developed,  a  Colonial 
Assembly  was  established,  which  Assembly  more 
fully  and  satisfactorily  represented  the  people.  In 
the  earlier  Colonial  Period  in  America,  because  of 
the  wide  seas  that  separated  the  Colonies  from  the 
niother  country,  it  was  ordained  by  Parliament  that 


so  ENGLISH  CROWN  GRANTS 

any  laws  enacted  by  a  Colonial  Assembly  and 
approved  by  the  Governor-General  of  the  Province 
should  immediately  have  the  full  force  and  effect  of 
an  act  passed  by  the  English  Parliament  and  approved 
by  the  Crown.  It  became  operative  forthwith  upon 
its  enactment.  In  the  event,  however,  that  such  action 
did  not  meet  with  the  approval  of  the  Imperial  Gov- 
ernment at  London,  then  the  English  Crown  had  the 
right  to  veto  or  annul  such  procedure  and  make  void 
such  act. 

This  right  of  veto  was  conditioned,  however,  only 
and  absolutely  upon  the  legality  of  all  proceedings 
under  the  law  during  the  lapse  of  time  between  the 
passage  of  the  act  by  the  Colonial  Assembly  with 
its  approval  by  the  Governor-General  and  the  date 
upon  which  the  official  Crown  veto  reached  the 
authorities  In  the  Province  where  the  law  was  en- 
acted. 

It  was  however  the  Council  and  not  the  Assembly 
which  ratified  the  Crown  Grant,  to  protect  the 
Crown.  It  was  done  by  the  Crown's  appointees  and 
not  by  the  people's  representatives. 

This  statement  is  here  fully  made  in  order  to 
show  that  any  Grants  which  may  have  been  properly 
made  by  the  Governor-General  of  the  Province  of 
New  York  In  behalf  of  the  English  Crown  and  which 
Grants  were  approved  by  the  Council  in  New  York, 
conveyed  to  such  grantees  the  rights  specified  therein. 

The  people  had  no  voice  In  the  premises.  Every 
property  and  political  right  possessed  by  a  settler 
in  the  Province  was  founded  upon  a  Crown  Grant  and 
he  had  no  other  title  or  right  In  the  Crown  lands  in 
the  Province. 


ENGLISH  CROWN  GRANTS  51 

This  forever  estops  any  and  all  traversing  of  the 
right  of  the  Governor-General  and  his  Council  to 
the  making  of  the  English  Crown  Grants  so  issued 
to  lands  on  Staten  Island  and  especially  and  particu- 
larly to  those  Grants  relating  to  lands  between  high 
and  low  water  mark  on  Staten  Island,  and  also  to 
lands  under  water,  to  the  "bounds  and  limits  of 
Richmond  County." 

The  Crown's  right  to  make  such  Grants  has  not 
been  traversed  in  two  centuries.  The  rights  there- 
under have  been  privately  held  and  enjoyed  while 
vast  improvements  rest  now  securely  upon  such  rights 
fully  exercised. 

After  the  Crown  had  made  about  one  hundred  and 
fifty  Grants  of  land  on  Staten  Island,  largely  through 
the  acts  of  the  Goyerriorj;GejiexaJ&  and  their  Councils, 
the  English  Crown  desired,  for  reasons  fully  set 
forth  in  "THE  MAJOR  AND  THE  QUEEN,"  to 
close  out  to  Lancaster  Symes  all  of  its  remaining 
titles  to  lands  on  Staten  Island  and  within  the  bounds 
and  limits  of  Richmond  County. 

In  order  that  no  question  might  ever  arise  as  to 
the  regularity  of  issue  and  validity  of  the  Grant  to 
Lancaster  Symes  it  was  issued  and  sealed  by  and  in 
the  name  of  Good  Queen  Anne  and  under  her  Royal 
Seal.  By  direct  and  Imperial  order  that  Great  and 
Good  Queen  caused  here  Royal  Grant  to  be  issued 
to  Lancaster  Symes,  closing  out  to  him  and  to  his 
heirs  and  assigns  forever,  as  of  her  Manor  of  East 
Greenwich  in  the  County  of  Kent,  all  the  lands  then 
remaining  vacant  and  unappropriated  on  Staten 
Island,  within  the  bounds  and  limits  of  Richmond 
County,  together  with  the  rights  of  fishing,  oyster- 


52  ENGLISH  CROWN  GRANTS 

ing  and  other  privileges  not  necessary  to  relate  herein 
but  fully  and  clearly  shown  in  the  books  of  public 
records. 

To  this  Grant  was  attached  the  Imperial  or  Royal 
Seal,  carved  in  wood  with  the  Royal  Arms  repre- 
sented thereon. 

The  boundaries  of  Richmond  County  as  shown 
upon  any  standard  map  issued  by  the  State  of  New 
York  or  by  the  State  of  New  Jersey,  or  in  fact  issued 
by  any  responsible  firm  of  map  publishers  are  within 
the  bounds  and  limits  of  the  English  Crown  Grant 
to  Lancaster  Symes  as  made  by  the  Sovereign  Queen 
Anne  under  the  Imperial  Seal.  No  other  Staten 
Island  Crown  Grant  was  made  in  which  the  lands 
under  water  conveyed  by  it  touched  at  every  point 
the  limits  and  bounds  of  the  County  of  Richmond. 
No  other  Crown  Grant  of  lands  on  Staten  Island 
extended  at  any  point  to  such  bounds  and  limits. 

This  Grant  was  not  only  issued  by  the  Queen  but 
it  was  approved  by  the  Imperial  Council  in  England, 
It  was  approved  and  ratified  by  the  Colonial  Council 
and  by  the  Governor-General  in  the  Province  of 
New  York.  Thereupon  it  was  properly  patented 
and  recorded.  It  constituted  the  highest  form  of  and 
was  the  most  important  Crown  Grant  of  lands  ever 
issued  for  lands  on  Staten  Island.  It  was  accepted 
and  acted  upon  by  the  people  during  the  entire  sub- 
sequent Colonial  period  and  has  never  been  chal- 
lenged. 

Since  the  date  of  its  issue  to  the  present  time,  cov- 
ering a  period  of  over  two  centuries,  every  generation 
has  exercised  the  rights  of  land  ownership  thereunder 
through  sales,  possessions  and  improvements  thereon. 


ENGLISH  CROWN  GRANTS  53 

In  all  that  period  of  time  neither  Federal,  State  nor 
City  Government  has  in  a  single  instance  denied 
legality  or  regularity  in  the  issue  thereof.  No  citizen 
has  denied  the  full  force  or  effect  of  the  said  Grant, 
while  multitudes  have  enjoyed  its  protection  and 
benefits. 


THE  NEW  WORLD 

AND  ^ 

CROWN  GRANTS 

At  the  close  of  the  fifteenth  century  the  maritime 
nations  of  Christendom  were  all  ecclesiastically  domi- 
nated by  the  Roman  Pontiff  and  acknowledged  him 
as  the  spiritual  representative  of  God  on  earth. 

The  "known  world"  prior  to  the  epochal  discov- 
eries made  by  Columbus,  had  been  largely  divided 
up  among  the  so  called  Christian  nations. 

The  waste,  vacant  and  unappropriated  lands  in 
each  realm,  were  universally  recognized  as  the  per- 
sonal property  of  the  respective  sovereigns. 

These  rulers  under  the  doctrine  of  the  divine 
right  of  Kings  and  claiming  to  represent  divine 
authority  in  political  sovereignty,  held  title  to  all 
lands  within  their  domains  over  which  the  Almighty 
alone  held  sway  and  which  lands  no  human  held  by 
right  of  ownership. 

Suddenly  the  great  navigator  Cristoforo  Colombo 
opened  a  door  on  the  sea's  western  horizon  and  a 
"new  world"  loomed  up  out  of  the  great  unknown, 
as  a  gift  from  God. 

These  newly  discovered  continents  consisted  en- 
tirely of  vacant  and  unappropriated  lands,  for  the 
heathen  inhabitants  thereof  were  adjudged  to  be 
pagans,  who  under  the  unchristian  code  of  inter-na- 

54 


ENGLISH  CROWN  GRANTS  55 

tional  law  then  prevailing,  had  no  right  whatever  to 
life,  liberty  or  the  pursuit  of  happiness  and  much  less 
any  title  to  lands  which  the  conqueror  felt  bound  to 
respect. 

The  title  to  the  virgin  lands  of  the  New  World 
was  admittedly  and  undeniably  in  God,  for  over 
them  as  yet  no  alleged  Christian  monarch  by  a  so- 
called  divine  right  held  sovereignty. 

The  Portuguese  and  Spanish  mariners  promptly  re- 
ported their  new  discoveries  to  their  respective  Sov- 
ereigns and  the  latter  hastened  to  renounce  all  claims 
thereto  at  the  feet  of  the  Holy  See  in  Rome,  each 
however  seeking  a  Grant  therefor  from  the  Pontiff. 

Under  the  doctrine  that  the  Pope  at  Rome  was 
the  visible  head  of  the  Church  of  God  on  Earth, 
there  fell  to  him  under  international  law  the  control 
of  these  virgin  lands  the  title  to  which  was  conceded 
to  be  in  God. 

It  was  consistent  therefore  with  such  a  world 
accepted  theory  that  on  May  4th,  1493,  Pope  Alex- 
ander VI,  just  seven  weeks  after  Columbus  cast 
anchor  in  the  harbor  of  Palos,  issued  his  famous 
Bull  dividing  between  Spain  and  Portugal  the  newly 
discovered  world. 

The  Papal  Grant  which  was  at  that  time  issued  to 
the  King  of  Spain  (Castile  and  Leon)  on  the  one 
hand  and  the  King  of  Portugal  on  the  other,  recited 
that  it  was  "given  with  the  liberality  of  Apostolic 
grace."    Also  that, 

"we  at  our  own  motion  and  not  at  your  solici- 
"tation,  nor  upon  petition  presented  to  us  upon 
"this  subject,  by  other  persons  in  your  name, 


56  ENGLISH  CROWN  GRANTS 

"but  of  our  pure  free  will  and  certain  knowl- 
"edge,  by  the  authority  of  God  Omnipotent 
"granted  to  us  through  blessed  Peter  and  of  the 
"vicarship  of  Jesus  Christ,  which  we  exercise 
"upon  earth,  by  the  tenor  of  these  presents 
"given,  concede  and  assign  forever  to  you  and 
"to  the  Kings  of  Castile  and  Leon  your  succes- 
"sors,  all  the  islands  and  main  lands  discovered 
"and  which  may  hereafter  be  discovered,  to- 
"wards  the  West  and  South,  with  all  other 
"dominions,  cities,  castles,  palaces  and  towns 
"and  with  all  their  rights,  jurisdictions  and 
"appurtenances,     *     *     *      " 

This  Bull,  of  Pope  Alexander  VI,  of  which  the 
foregoing  is  but  an  extract,  "did  shape  the  destinies 
of  both  hemispheres  for  centuries,  leaving  vast  traces 
even  to-day."  "It  practically  gave  a  monopoly  of 
most  of  the  World's  seas  to  Spain  and  Portugal  and 
for  a  century  thereafter  the  ships  of  all  nations  but 
these  voyaged  at  their  peril  in  the  South  Atlantic, 
Indian  and  Pacific  Oceans." 

Spain's  Empire  in  South  America,  in  Mexico,  Cal- 
ifornia and  Florida  rested  upon  it.  Portugal's  sover- 
eignty over  Brazil  was  under  it  and  the  title  to  the 
Philippines  which  the  United  States  of  America  pur- 
chased from  Spain  eminated  from  it. 

Strange  analogies  run  between  the  original  Grant 
made  by  Pope  Alexander  VI  covering  the  New 
World  and  the  Grant  made  by  the  English  Crown 
to  Lancaster  Symes  and  others,  referred  to  herein 
(Chapter  13). 


ENGLISH  CROWN  GRANTS  57 

The  Pope  alleges  that  his  right  to  convey  is 
"by  the  authority  of  God."" 

The  English  Crown  says  that  its  authority 
is  "by  the  grace  of  God" 

The  Pope  says  that  his  Grant  is  issued  by 
him  "of  Apostolic  Graced' 

While  the  English  Crown  Grant  claims  to 
be  issued  of  "Especial  Grace"  for  said  the  reli- 
gious authorities,  "Ordination  (of  the  Crown) 
is  a  sacrament  and  confers  a  special  grace,  which 
is  permanent." 

The  Pope  further  records  that  he  grants  by 
his  "own  motion," 

The  English  Crown  Grant  represents  being 
isued  by  "meer  motion." 

The  Pope  says  that  he  makes  the  Grant  of 
"our  pure  free  will" 

And  the  English  Crown  Grant  says  "we  being 
willing." 

The  Pope  declares  that  he  issues  his  Grant 
having  "certain  knowledge." 

The  English  Crown  likewise  claimed  "cer- 
tain knowledge"  or  correct  and  sure  informa- 
tion. 

In  both  Pontifical  and  English  Crown  Grants 
"lands"  and  "islands"  are  granted  but  with  no 
specific  reference  to  lands  under  water. 


58  ENGLISH  CROWN  GRANTS 

In  no  civilized  country  nor  in  any  Court  is  it  held 
that  submerged  lands  were  not  included  in  the  first 
great  and  original  Grant  issued  by  the  Pope  covering 
the  virgin  titles  of  the  New  World.  On  the  con- 
trary, every  nation  claiming  thereunder  maintained 
its  title  to  submerged  lands,  Under  tidal  waters, 
according  to  the  universally  accepted  law  of  nations. 

The  Pope's  original  American  Grant  was  made 
to  the  Kings  of  Spain  and  Portugal  and  not  to  those 
kingdoms. 

The  Grants  made  by  the  English  Crown  to  its 
Grantees  in  America  were  in  conformity  with  the 
same  principle,  made  by  the  Kings  and  not  by  the 
Kingdom. 

It  should  be  remembered  that  the  English  claims 
of  Divine  right  as  to  kingship  and  Crown  land  titles 
in  America  are,  in  theory,  drawn  from  the  same 
eternal  source  as  claimed  by  Pope  Alexander  VI; 
that  is,  direct  from  God  and  free  from  any  inter- 
mediary ownership  by  a  subject. 

The  Anglican  Church  has  direct  descent  from  the 
Catholic  Church  at  Rome. 

Pope  Alexander  VI  occupied  the  pontifical  chair 
prior  to  the  seism  between  Rome  and  London.  The 
English  Crown  therefore  claimed  its  right  by  divine 
authority  manifest  in  the  Church  and  under  the 
solemn  benediction  of  the  Bishop  of  the  Church  of 
God  bestowed  at  the  coronation  of  the  Kings. 

If  a  written  instrument  is  to  be  construed  accord- 
ing to  the  intent  of  those  who  draw  and  execute  it, 
then  the  English  Crown  Grants  to  lands  in  America 
are  to  be  interpreted  in  the  spirit  of  the  royal  minds 
issuing  them. 


ENGLISH  CROWN  GRANTS  59 

The  English  Crown  recognized  that  it  had  re- 
ceived its  rights  in  the  New  World  from  God  Al- 
mighty, whether  the  discovery  was  made  by  the 
Cabots  or  Columbus. 

It  then  sought  in  carefully  worded  written  instru- 
ments to  convey  to  its  Grantees  unimpaired  those 
sacred  and  solemn  rights  of  property  and  privilege 
which  it  had  received  in  its  own  solemn  relation  as 
a  Divinely  appointed  and  ordained  Monarch. 

In  harmony  with  such  a  concept,  Lancaster  Symes, 
upon  his  receipt  of  the  Crown  Grant  issued  to  him 
by  Queen  Anne,  "the  good  Queen  of  England,"  cov- 
ering lands  on  Staten  Island  and  as  an  act  of  Fealty 
and  Service  to  the  Great  Head  and  original  Source 
of  all  titles,  immediately  endowed  St.  Andrew's 
Church  at  Richmond,  Staten  Island,  the  benefits  of 
which  endowment  that  church  has  enjoyed  unto  this 
day. 

He  conveyed  to  it  two  large  tracts  of  the  same 
lands  granted  to  him  by  the  Crown,  one  tract  for  a 
church  and  burial  site  and  another  tract  for  glebe 
uses. 

The  doctrine  involving  the  sacred  rights  of  prop- 
erty under  Crown  Grants  harks  back  to  the  solitudes 
of  God  and  is  prophetic  of  a  world's  restitution  to 
its  Divine  Proprietor,  when  the  last  man  shall  sleep 
amidst  its  final  silences. 


ENGLISH  COMMON  LAW 

AND 

CROWN  GRANTS 


In  Colonial  days  English  Comon  Law  recognized 
the  issue  of  English  Crown  Land  Grants  as  a  mon- 
archical prerogative  entirely  apart  from  the  people. 

We,  in  these  more  modern  days  and  in  this  re- 
public, look  at  English  Crown  Grants  from  the  view 
point  of  democracy  or  of  the  dominance  of  the  people. 

The  view  point  shifted  for  us  in  1776.  At  that 
time  the  people  seized  the  Crown  of  Sovereignty  and 
absorbed  all  Crown  rights.  Justice  requires  that  we 
shall  not  color  our  present  thinking  with  the  prejudice 
born  of  our  larger  liberties,  when  we  consider  the 
basis  of  certain  Grants  of  land  made  by  the  Crown 
to  private  owners  and  which  land  should  in  our  judg- 
ment, have  been  retained  by  the  Crown  for  the  use  of 
the  public  at  large.  Such  self-interest  will  not  justify 
the  seizure  and  forfeiture  of  private  property  rights 
previously  obtained  from  the  Crown,  if  so  obtained 
in  strict  conformity  with  the  Common  Law  at  that 
time  prevailing  with  its  full  approval  and  support 
of  both  Sovereign  and  people. 

We  should,  in  imagination,  turn  back  the  wheels 
of  human  progress  and  think  out  our  mental  prob- 
lems of  Crown  Land  Grant  investigation  in  the  dim- 

60 


ENGLISH  CROWN  GRANTS  6i 

mer,  but  correct  and  wholesome  light  of  old  English 
Common  Law. 

To  properly  interpret  the  language  used  in  the 
English  Crown  Land  Grants  iwhich  were  issued 
during  the  Colonial  Period  and  which  conveyed  lands 
in  the  American  Colonies,  we  must  read  them  in  the 
light  of  their  times,  and  translate  them  in  accord 
with  the  intent  of  the  original  Grantor  and  Grantee. 

We  must  interpret  such  Crown  Grants  with  proper 
regard  for  the  then  exact  legal  meaning  of  the  words 
used  therein  and  as  at  that  time  understood  by  the 
Crown  and  its  English  speaking  subjects. 

The  language  of  a  people  changes  as  time  pro- 
gresses, but  property  rights  acquired  do  not  in  the 
slightest  degree  alter  under  a  languages  shifting 
meaning. 

Such  changes  are  not  limited  to  the  style  of  chiro- 
graphy  or  to  variations  in  the  spelling  of  words,  all 
of  which  are  but  trivial  tokens  of  the  deep  and  rest- 
less pulsations  of  mind  waves,  in  the  ceaseless  tide 
of  thought  bearing  words.  Words  may  grow,  ex- 
pand and  deepen  under  the  vitalizing  influences  of 
human  progress,  or  they  may  wither  and  shrivel  from 
non  use  and  become  obsolete,  with  its  benumbing  and 
deadening  effect. 

Words  in  their  evolution  of  meaning  are  flexible 
and  absorbent.  They  take  on  new  shades  of  thought, 
while  l£^cflgcapJie£&  show  us  that  by  their  use  in  some 
connections  they  change  their  Import  In  popular  defi* 
nition. 

Legal  definitions  also  take  on  new  lights  and  shades 
as  generations  pass.  He  who  would  voice  to  us  in 
modern  language  the  thought  of  the  past,  or  who 
would  cloak  the  thought  of  the  present  in  the  phrase- 


62  ENGLISH  CROWN  GRANTS 

ology  of  by-gone-days,  must  tread  softly  and  feel  his 
way  with  care  and  discernment  along  the  pathway 
of  human  thinking.  Otherwise  his  dictum  will  be 
inconsistent  with  the  intent  and  expression  of  former 
thinkers  and  if  followed  may  become  subversive  of 
the  sacred  rights  of  the  present  and  future  genera- 
tions. Justice  would  not  falsify  the  past  to  the  injury 
of  the  innocent  in  order  to  forfeit  merited  properties 
and  privileges  and  to  destroy  vested  rights. 

To  us,  many  an  old  English  word  has  lost  from 
its  bosom  some  rich  gem  of  human  emotion.  Other 
words,  through  the  polishing  friction  of  use,  under 
changing  conditions,  have  taken  on  a  new  brilliance 
and  luster. 

In  many  of  the  old  English  Crown  Grants  we  find 
that  rich  and  grand  old  English  word,  "grace"  in- 
scribed therein. 

That  word  was  formerly  full  and  fragrant  with 
a  meaning  which  expressed  a  wealth  of  unselfish  love 
to  one  beloved  and  for  love's  sake. 

To-day,  the  word,  "grace,"  in  common  parlance," 
practically  represents  symmetry  and  the  artistic  in 
form,  carriage  and  poise,  or  it  may  suggest  a  suave 
condescension. 

Modern  grace  may  be  betokened  by  the  handsome 
and  stately  feminine  form  and  figure,  while  the  old 
English  word  grace  found  its  portrayal  in  the  divine 
mental  and  spiritual  endowments  of  the  highest  and 
noblest  ty'pes  of  true  and  perfect  womanhood. 

Modern  grace  may  be  exemplified  in  death,  but 
the  grace  of  our  forefathers  was  immortal.  It  never 
dies. 

Wc  Americans  with  somewhat  less  of  ceremony 


ENGLISH  CROWN  GRANTS  63 

than  bnisqueness  denied  the  "divine  right  of  kings," 
at  the  same  time  we  accord  to  our  judiciary  "the 
-diviiTC  right  of  final  judgment"  affecting  human  rela- 
tions. 

To  these  our  appointed  dispensers  of  supreme  jus- 
tice, ancient  English  Crown  Grants  are  brought  for 
adjudication. 

These  Grants  written  in  the  language  of  the  past 
and  under  the  English  Common  law  are  to  be  in- 
terpreted in  the  language  of  the  present  day,  with  the 
sacred  rights  of  vested  property  depending  upon 
the  faithful  and  correct  translation  and  interpreta- 
tion thereof. 

Prior  to  the  American  Revolutionary  war  the 
Common  Law  of  England,  in  so  far  as  it  could  be 
adapted  to  the  western  continent  became  the  basic 
law  of  the  American  Colonies.  It  became  funda- 
mental in  America. 

It  underlaid  the  whole  superstructure  of  American 
Colonial  Institutions. 

In  pursuance  of  English  Common  Law  the  Colo- 
nies were  developed.  Under  it  the  Governments 
therein  were  established,  human  liberties  were  therein 
guaranteed,  and  property  rights  were  therein  safe- 
guarded. 

Colonial  institutions  of  almost  every  kind  and 
nature  existed  by  virtue  of  Royal  Grants  from  the 
Crown,  back  of  which  was  the  old  Common  Law  of 
England. 

Under  Crown  Grants  great  commercial  and  trading 
companies  were  organized  in  America.  The  English 
Crown  was  the  source  of  Granted  Charters  for  the 


64  ENGLISH  CROWN  GRANTS 

Educational  institutions  and  Ecclesiastical  bodies 
founded  in  the  Colonies. 

Crown  Grants  were  the  source  of  Colonial  land 
titles. 

It  is  very  clear  that  the  existance  of  Colonial  in- 
stitutions, the  preservation  of  human  liberties  in  the 
Colonies  and  the  protection  of  the  rights  of  private 
property  in  the  Provinces,  all  depended  absolutely 
upon  the  integrity,  inviolability  and  validity  of  the 
English  Crown  Grants  which  rested  upon  and 
acquired  their  force  and  effect  from  and  under  old 
English  Common  Law. 

The  Crown  Grants  so  issued,  by  their  terms,  gave 
in  unequivocal  language  certain  valuable  rights  and 
properties  in  exchange  for  certain  revenues  or  Quit- 
Rents  as  the  consideration  therefor. 

The  Crown  under  English  Common  Law  had  pos- 
sessed the  rights  and  properties  so  parted  with  and  in 
return  for  such  conveyances  the  Sovereign  received 
the  consideration  provided  to  be  paid  under  the  terms 
of  the  Grants. 

It  was  a  fundamental  proposition  of  law  at 
that  time  as  It  also  Is  now,  that  where  two  parties 
entered  into  contract  relations  for  a  valuable  consid- 
eration, one  of  the  parties  thereto  parting  with  the 
subject  matter  of  the  contract  and  the  other  thereto 
faithfully  paying  the  agreed  consideration  therefore, 
and  mentioned  therein,  the  contract  so  made  Is  Irre- 
vocably binding  upon  both  parties  thereto,  unless 
voided  by  the  free  and  voluntary  consent  of  each. 

It  was  true  that  fraud  might  void  a  contract,  but 
not  where  the  Crown  was  a  party  thereto.  "The 
King  cannot  deceive"  and  "the  King  cannot  be  de- 


ENGLISH  GROWN  GRANTS  6s 

ccived"  were  maxims  of  law  then  well  understood  and 
accepted  by  King  and  people.  How  then  could  the 
issue  of  fraud  be  raised? 

The  people  of  the  realm  were  fully  and  com- 
pletely bound  by  the  Royal  Grants  covering  rights 
and  properties  in  the  Colonies  and  also  in  England. 

Crown  Grants  were  "open  letters"  or  letters  patent. 
They  were  not  secret  instruments  but  designedly  and 
by  established  rule  and  practice  Issued  In  full  sight 
of  and  with  the  knowledge  of  the  public.  Black- 
stone  and  other  authorities  tell  us  of  the  great  care, 
precaution  and  painstaking  publicity  with  which  they 
were  considered,  prepared  and  issued. 

The  custom  pursued  by  the  successive  Sovereigns 
in  England,  In  this  legal  procedure  with  the  full 
knowledge  and  tacit  consent  of  the  people,  cannot 
now  be  successfully  traversed  on  the  theory  that  the 
King  had  no  right  to  grant  certain  classes  of  land 
which  he  is  alleged  to  have  held  In  trust  for  the 
people. 

Such  Grants,  If  they  had  been  made  by  the  State 
In  these  days  of  democracy  might  with  a  color  of 
credulity  be  so  called  in  question. 

In  effect  our  statuary  enactments  restraining  pub- 
lic officials  from  makihg  Land  Grants  under  cer- 
tain conditions,  not  prescribed  In  Colonial  days,  in 
themselves  admit  that  such  practices  were  consistent 
with  the  common  law  and  usage  and  can  only  be  now 
restrained  by  statuatory  enactments. 

The  argument  based  upon  any  theory  of  lack  of 
Kingly  power,  if  made,  will  not  be  sustained  under 
our  leading  decisions.  No  such  attitude  was  tenable 
under  old  English  Common  Law.     It  Is  to  be  said 


66  ENGLISH  CROWN  GRANTS 

to  the  lasting  credit  of  the  New  York  Judiciary  that 
the  Courts  of  the  State  of  New  York  have  never 
voided  an  English  Crown  Grant.  England  had  no 
constitution.  The  Magna  Charta  did  not  limit  the 
right  of  the  King  to  make  Grants  of  land  in  America. 
"Such  is  undeniably  the  doctrine  upheld  in  the  State 
of  New  York."  (Court  of  Appeals  of  State  of  New 
York.) 

The  English  Courts  had  for  generations  prior  to 
the  American  Revolt  fully  and  completely  recog- 
nized the  English  Crown's  right  to  make  such  Grants 
throughout  the  realm.  Simultaneously  with  the  issue 
of  Royal  Grants  in  the  Colonies  the  English  Crown 
freely  and  unrestrainedly  issued  multitudes  of  similar 
grants  in  England,  Scotland,  Ireland  and  Wales. 

The  American  Colonists  accepted  such  Colonial 
Grant  in  good  faith  and  paid  their  Quit-Rents.  They 
then  proceeded  to  lay  thereon  the  foundations  of  an 
old  civilization  in  a  new  world  and  under  the  pro- 
tection of  English  Common  Law. 

All  this  was  done  with  the  full  knowledge  and  con- 
sent by  and  of  the  English  people.  It  was  in  har- 
mony with  the  latter's  free,  frequent  and  contem- 
poraneous indulgence  and  participation  in  like  prac- 
tices and  policy  exercised  toward  them  by  the  Crown 
in  both  England  and  America.  What  was  sauce  for 
the  English  goose,  was  a  sauce  for  the  American 
gander. 

"The  English  Crown  looked  upon  America 
"as  but  the  extension  of  the  soil  of  England." 

What  was  legally  and  morally  right  to  an  Eng- 
lishman in  England,  was  likewise  legally  and  morally 


ENGLISH  CROWN  GRANTS  67 

right  to  him  when  he  migrated  to  the  Colonies. 
There  was  no  double  standard  of  justice  and  equity, 
under  English  Common  Law. 

This  statement  is  so  fully  made  herein,  in  order  to 
emphasize  the  fact  that  the  English  Crown  Grants 
were  no  emergency  inventions  on  the  part  of  the 
Crown  to  meet  conditions  suddenly  arising  in  con- 
sequence of  the  discovery  and  settlement  of  America. 

The  English  Crown  had  been  making  Crown 
Grants  for  centuries  prior  to  the  discovery  of  the 
New  World.  The  Grants  made  in  America  com- 
prise but  a  chapter  in  the  record  of  England's  his- 
toric policy  and  practice. 

Suddenly  a  new  English  ministry  facing  a  deficit 
created  by  vast  European  War  Expenditures,  sought 
to  increase  the  Royal  revenues  by  imposing  a  tax  upon 
the  American  Colonists  not  prescribed  in  their  Grants 
and  demanded  increased  revenues  from  the  American 
Colonies. 

The  British  Government  undertook  to  "read  into 
the  Crown  Grants"  already  issued,  the  right  to  abro- 
gate, rescind,  limit  or  amend  the  same  without  the 
consent  of  the  Grantees. 

It  undertook  to  deprive  Connecticut  of  its  pre- 
viously granted  Charter  and  Plymouth  Colony  of  its 
privileges.  It  attempted  to  enforce  the  same  policy 
in  other  directions  in  America.     ,^^ 

Yale  College  (1763)  and  other  great  XQOamfilicial. 
bodies  vigorously  protested  against  such  attempted 
invasion  of  the  rights  enjoyed  by  them  under  Crown 
Grants. 

The  Colonists  asserted  and  pleaded  the  sacred 
rights  of  contract  and  the  inviolability  of  personal 


68  ENGLISH  CROWN  GRANTS 

and  public  rights  which  had  been  granted  to  and 
acquired  by  them  under  the  Seal  of  their  Sovereigns. 

The  Crown  had  made  the  Grants  and  the 
Colonists  had  invoked  the  accepted  rule  of  Old  Eng- 
lish Common  Law  that  "the  King  can  do  no  wrong." 
They  claimed  that  the  Crown  did  right  when  it  issued 
the  Grants  to  them  and  it  could  not  rescind  the  Grants 
for  that  would  be  a  legal  and  moral  wrong.  Accord- 
ing to  English  thought,  this  was  logic  and  not  sophis- 
try. 

The  Colonists  flatly  denied  the  Sovereign's  right  to 
demand  by  taxation  any  increase  in  revenues  from 
those  who  held  their  properties  and  rights  under  well 
defined  and  clearly  drawn  Crown  Grants,  in  which 
Grants  their  Quit-Rents  were  fully  specified  and  their 
rights  were  clearly  defined. 

"Staten  Island  is  comprehended  in  the  West 
"Riding  of  Long  Island  but  payeth  noe  tax,  be- 
ting enjoyned  by  their  patents  to  pay  a  bushall 
"of  good  wheate  for  each  lott  consisting  of  80 
acres. 

(Report    Commissioner    John    Lewin    to 
Duke  of  York.) 

Taxation,  then,  without  their  consent  would  have 
been  a  flagrant  violation  of  their  granted  rights  and 
an  arbitrary  exercise  of  kingly  power. 

On  this  issue  was  fought  the  battles  of  the  Ameri- 
can Revolution.  For  the  Colonist  to  have  admitted 
the  right  of  the  Crown  to  alter,  amend  or  rescind  its 
Colonial  Grants  would  have  been  the  admission  that 
all  of  their  property  rights,  commercial  privileges 
and  personal  liberties  were  held  by  Royal  sufFrance 


ENGLISH  CROWN  GRANTS  69 

and  favor.  This  doctrine  once  admitted,  then  these 
privileges  might  have  been  withdrawn  through  Royal 
caprice  and  at  the  King's  pleasure.  Liberty  could 
then  have  been  replaced  by  servitude  and  property 
could  have  been  displaced  by  poverty  at  the  will  and 
whim  of  their  Sovereign. 

The  Colonists  well  knew  that  English  Courts  and 
other  legal  authorities  had  uniformly  maintained 
that  the  most  dangerous  power  to  be  surrendered 
back  to  a  government  was  the  right  to  confiscate  pri- 
vate property  without  adequate  compensation  there- 
for. 

"So  great  moreover  is  the  regard  of  the  law 
"for  private  property,  that  it  will  not  authorize 
"the  least  violation  of  it;  no  not  even  for  the 
"general  good  of  the  whole  community.  If  a 
"new  road,  for  instance,  were  to  be  made 
"through  the  ground  of  a  private  person,  it 
"might  perhaps  be  extensively  beneficial  to  the 
"public;  but  the  law  permits  no  man,  or  set  of 
"men,  to  do  this  without  the  consent  of  the 
"owner  of  the  land. 

"In  vain  may  it  be  urged,  that  the  good  of  the 
"individual  ought  to  yield  to  that  of  the  com- 
"munlty;  for  it  would  be  dangerous  to  allow 
"any  private  man,  or  even  any  public  tribunal,  to 
"be  the  judge  of  the  common  good,  and  to  de- 
"cide  whether  it  be  expedient  or  no. 

"Besides  the  public  good  is  in  nothing  more 
"essentially  interested,  than  in  the  protection  of 
"every  Individual's  private  rights,  as  modelled 
"by  the   municipal   law.     In  this   and  similar 


70  ENGLISH  CROWN  GRANTS 

"cases  the  legislature  alone  can  and  indeed  fre- 
"quently  does,  interpose  and  compel  the  indi- 
"vidual  to  acquiesce. 

"But  how  does  it  interpose  and  compel?  Not 
"by  absolutely  stripping  the  subject  of  his  prop- 
"erty  in  an  arbitrary  manner;  but  by  giving  him 
"a  full  indemnification  and  equivalent  for  the 
"injury  thereby  sustained." 

(Blackstone,  Book  i,  Chap,  i,  p.  I39). 

All  the  above  questions  and  more  set  the  Colonists 
aflame  and  civil  war  ensued.  The  Colonial  Grants 
were  resealed  in  the  blood  of  the  patriot  and  ratified 
and  confirmed  by  victory. 

The  issue  referred  to  was  eternally  settled  in 
America  by  the  final  decree  of  that  Court  of  last  re- 
sort, WAR.  By  that  decision  all  English  Crown 
Land  Grants  became  inviolate.  "They  mean  what 
they  say,  and  they  say  what  they  mean."  That  decree 
settled  forever  that  nothing  can  be  "read  into  them," 
or  emasculated  from  them. 

Crown  Grants  issued  by  the  English  Crown  prior 
to  1778  and  covering  lands  in  America  were  there- 
after to  stand,  unquestioned,  on  any  ground  as  to 
their  merits,  and  should  be  interpreted  under  English 
Common  Law  with  the  full  force  and  effect  with 
which  they  were  issued  by  the  Crown  and  received  by 
the  Colonists. 

In  harmony  with  this  final  arbitrament  of  war,  the 
Governments  of  Great  Britain  and  the  United  States 
of  America  by  solemn  treaty  stipulations,  recog- 
nized, affirmed  and  confirmed  the  validity  of  the 
Grants  previously  made  by  the  English  Crown. 


ENGLISH  CROWN  GRANTS  71 

The  State  of  New  York  has  likewise  in  each  con- 
stitution adopted  by  it,  solemnly  ratified  the  English 
Crown  Grants,  which  had  been  consumated  in  good 
faith  and  thereafter  sustained  through  the  horrors 
of  a  Civil  War. 

Hence  the  issued  Crown  Grants  stand  unimpeach- 
able under  treaty  and  constitutional  provisions,  as  to 
the  kingly  power  to  issue  the  Grants  or  as  to  any 
trespass  upon  the  rights  of  the  people.  The  people 
themselves  denied  this  trespass  by  force  of  arms, 
compelled  the  Crown  to  ratify  them  and  our  Govern- 
ment affirmed  that  decision. 

Princes  and  People  are  alike  bound  by  all  treaties 
of  peace  made  by  their  Sovereign  Governments. 

To  reach  a  correct  understanding  of  the  rights  and 
privileges  conveyed  under  an  English  Crown  Grant 
we  should. 

First  Disregard  every  statute  enacted  since 
such  Grant  was  patented. 

Second  Disregard  every  judicial  decision  made 
since  the  English  Crown  Grant  in 
question  was  patented  and  relating  to 
old  English  Crown  Grants  In  general; 

Excepting  Only  However 

The  legal  definitions  and  Interpretations  con- 
tained in  such  decisions  relating  to  the  Common 
Law  of  England  existing  at  the  date  of  the  issue 
\oi  the  Grant  under  consideration. 


V 


We  must  go  back  to  the  "stuffy  little  old  English 
Court  room"  of  the  Colonial  period.    We  must  there 


72  ENGLISH  CROWN  GRANTS 

consult  the  decisions  of  the  old  Court  of  the  King's 
Bench,  together  with  the  opinions  of  other  old 
authorities  who  then  determined  the  rights  and  pow- 
ers of  both  King  and  people,  under  old  English  Com- 
mon law.  At  that  time  monarchical  influences  were 
in  the  ascendancy  and  democratic  principles  were  in 
dormant  embryo. 

The  accepted  theory  in  those  days  was  that  all  pri- 
vate title  in  and  to  lands  came  to  the  people  through 
the  condescension  and  benevolence  of  their  Sover- 
eign, who  had  received  such  title  by  divine  right 
from  God. 

Therefore,  according  to  that  doctrine  the  title  to 
all  vacant  and  unappropriated  lands  in  the  realm 
had  never  passed  througli^or  from  any  member  of 
the  human  family  and  no  private  rights  attached 
thereto  or  were  inherent  therein. 

"Me  und  Gott"  then  as  well  as  now  (1918),  pro- 
claimed by  the  ruling  Sovereign  bespoke  a  theory 
of  "close  corporation,"  i^rrnpated  to  itself  by  human 
Kingship;  a  complete  monopoly  of  title  by  royalty 
in  utter  disregard  of  the  comfort,  happiness  and  wel- 
fare of  the  subjects  in  the  realm.  To  dispute  such 
a  Royal  right  was  considered  treasonable  to  the 
King  and  blasphemous  to  God. 

To  all  this  the  people  assented  and  cried  out,  "Long 
live  the  King."  Consequently  a  Crown  Grant  when 
made  was  accordingly  naked  and  void  of  any  reserva- 
tions in  behalf  of  the  public,  unless  so  expressed  in 
the  language  of  the  Grant. 

The  old  instruments  of  conveyance  cannot  at  this 
late  date  be  stretched  to  accommodate  "the  expanding 
rights  of  the  people,"  however  desirable  that  might  be 


ENGLISH  CROWN  GRANTS  73 

from  the  standpoint  of  public  policy.  Confiscation 
of  private  property  without  adequate  compensation  is 
subversive  of  good  government,  attacks  the  very 
foundations  of  human  liberty,  is  contrary  to  the  funda- 
mentals of  good  law  and  defies  conscience,  for  which 
perfidious  proceedings  our  courts  will  not  under  any 
pretext  or  sophistry  stand. 

The  only  legal  effect  which  the  American  Revo- 
lution had  upon  the  titles  to  Crown  lands  in  the  Amer- 
ican Colonies  may  be  safely  stated  as  follows : 

The  Crown's  absolute,  undoubted  and  un- 
assailable title  to  the  then  vacant  and  unap- 
propriated lands  in  the  Colonies  was  acquired 
by  the  people.  Before  the  Revolution  that  title 
was  in  the  Crown,  in  contradistinction  from  the 
people.  They  were  "Crown  Lands,"  utterly 
regardless  as  to  whether  they  were  uplands, 
lands  between  high  and  low  water  mark  or  sub- 
merged lands. 

The  Crown  could  grant  or  lease  to  or  with- 
hold these  lands  from  the  citizens. 

When  the  American  people  by  Revolution 
acquired  these  sovereign  rights,  the  King's  rights 
and  the  people's  rights  became  merged  in  the 
State's  title.  As  it  now  exists  it  is  a  perfect 
title,  "as  an  incident  of  Soverignty",  hut  it  does 
not  affect  the  title  to  any  lands  previously  grant- 
ed by  the  Crown. 

The  tranfer  took  place  when  Democracy  was 
enthroned  in  America. 

Such  newly  acquired  popular  rights  were  not 
retroactive.    The  Courts,  both  State  and  Fed- 


74  ENGLISH  CROWN  GRANTS 

cral,  have  settled  that  question  for  all  time,  as 
appears  not  only  in  uniform  judicial  decrees, 
but  also  in  every  constitution  adopted  by  the 
State  of  New  York,  since  its  incorporation  as 
a  state. 

Every  English  Crown  Grant  properly  issued 
has  been  sustained  by  the  Courts  of  New  York 
when  challenged. 

Not  one  English  Crown  Grant  has  been 
voided  by  the  Courts  of  New  York. 


ROYAL  AUTHORITY 

FOR 

CROWN  GRANTS 

The  English  Crown  took  possession  of  Staten 
Island  principally  under  two  rights  or  claims  of  own- 
ership. Its  first  claim  was  that  by  right  of  discovery, 
under  which  the  English  Crown  asserted  title  thereto 
and  had  obtained  political  sovereignty  and  jurisdic- 
tion thereover.  It  maintained  that  upon  taking  pos- 
session of  the  Island  it  was  but  entering  into  lands 
to  which  it  was  fully  entitled  by  right  of  prior  dis- 
covery. 

This  was  England's  bold  and  defiant  attitude  when 
confronting  the  land  grabbing  nations  of  Continen- 
tal Europe. 

This  doctrine,  as  originally  promulgated  by  all  of 
the  powers  of  Europe  and  stripped  of  all  sentiment 
and  finesse,  carried  with  it  the  cold  blooded  right  to 
disregard  the  Indians  as  having  any  fixed  abode,  or 
any  real  title  In  the  lands  they  occupied.  They 
were  decreed  to  be  pagans,  infidel  dogs,  objects  for 
missionary  effort  and  pious  plunder.  To  enslave  a 
pagan  to  a  pious  master  was  to  put  a  bad  thing  to  a 
good  use.     What  shocking  perversity! 

England,  however,  in  practice  acted  upon  the  more 
just  and  humane  doctrine  of  purchasing  from  the 
Indians  the  lands  in  question. 

75 


76  ENGLISH  CROWN  GRANTS 

Modern  Christian  sentiment  does  not  tolerate 
such  a  pagan  conception  even  though  heretofore  its 
taint  may  have  dimmed  the  lustre  of  some  of  our 
court  decisions. 

Since  the  time  of  the  conquest  of  England  by 
William  of  Normandy,  it  has  been  maintained  under 
English  Common  Law,  that  the  titles  to  all  lands 
in  England  must  be  traced  back  to  an  English  Crown 
Grant,  by  either  record  or  prescription. 

"He  also  that  has  a  particular  estate  by 
"agreement  of  parties,  must  show,  not  only  his 
"own  conveyance,  but  the  deeds  paramount,  for 
"there  can  be  no  title  made  to  a  thing  lying  in 
"agreement  but  by  showing  such  agreement  up 
"to  the  first  original  grant."  (Introduction  to 
the  Law  of  England,  relating  to  Real  Property, 
Buler  1791  A.  D.,  6  Ed.,  p.  251.) 

It  appears  to  be  implied  by  some  authorities  and  in 
some  decisions,  that  greater  flexibility,  latitude  and 
scope  should  be  accorded  to  a  Crown  Grant  made  to 
a  municipality  than  to  a  private  individual.  In  other 
words,  it  seems  to  be  implied  in  some  cases  that  a 
Crown  Grant  to  an  individual  should  be  more  strictly 
construed  than  should  the  same  Grant  when  made  to 
a  municipality. 

This  theory  did  not  exist  under  old  English  Com- 
mon Law. 

Such  a  dictum  is  seemingly  inequitable,  and  has 
not  appeared  as  a  governing  factor  in  any  final  New 
York  decisions.  If  a  sovereign  state,  with  a  popu- 
lation of  ten  millions  (10,000,000)  of  citizens,  by 
its  properly  constituted  authorities,  makes  a  Grant  of 


ENGLISH  CROWN  GRANTS  77 

a  Bay  or  a  Harbor  to  a  municipality,  where  such  a 
municipality  has  a  population  of  ten  thousand  people, 
then  nine  million  nine  hundred  and  ninety  thousand 
people  are  absolutely  shorn  of  their  title  and  inter- 
est in  the  land  so  granted,  for  the  benefit  of  but  ten 
thousand  people.  It  Is  of  no  interest  to  the  people 
so  divested  of  title  whether  the  same  went  to  an 
aggregation  or  monopoly  of  ten  thousand  citizens, 
or  to  but  one  individual.  The  theory  that  such 
municipality  holds  such  title  as  a  trust  for  the  people 
is  "fine  spun"  in  face  of  the  fact  that  it  holds  It  for 
the  municipality  to  the  exclusion  and  utter  disregard 
of  the  citizens  of  the  State  at  large.  He  who  parts 
with  a  title  or  with  all  his  interests  in  a  title  has  little 
concern  whether  it  be  to  a  corporation  in  the  form 
of  a  municipality  or  to  an  individual  citizen,  provided 
no  further  benefits  accrue  to  him  and  he  Is  divested  of 
all  rights  therein. 

In  a  Crown  Grant  of  land  where  by  its  terms  tidal 
water  is  fixed  as  a  boundary  thereof,  high  water  mark 
is  intended.  This  has  been  conclusively  held  and 
cannot  be  now  questioned.  If,  however,  such  Royal 
Grant  is  one  of  political  jurisdiction  only  then  the 
boundary  is  to  low  water  mark. 

It  has  been  further  held,  in  the  case  of  Baldwin  vs. 
Brown  (16  N.  Y.  359)  (and  in  9  Johns  100)  that 
natural  boundaries  are  more  to  be  regarded  than 
artificial  ones  or  those  which  are  not  permanent. 

"By  the  Royal  commission  to  Governors,  the 
"Governor  with  the  advice  of  the  Council  was 
"authorized  to  make  Grants  of  the  public  lands 
"on   such  terms   as  might  be   deemed  proper; 


78  ENGLISH  CROWN  GRANTS 

"which    Grants,    on    being    sealed    with    the 
"Colonial    Seal,    and    recorded,    were    to    be 
"effectual."     (Town  of  Brookhaven  vs.  Strong, 
6oN.  Y.,  56). 

"It  is  well  settled  by  authority  that  a  State 
"has  the  right  to  dispose  of  the  unappropriated 
"land  within  its  own  limits,  and  that  when  a 
"grant  has  been  made  the  title  becomes  vested, 
"without  any  power  in  the  State  to  rescind  the 
"grant,  for  fraud  or  otherwise,  when  the  land 
"granted  has  passed  into  the  hands  of  the  bona- 
"fide  purchaser  for  value,  without  notice." 

"Nor  unless  fraudulent,  can  it  be  revoked  tt 
"all,  if  its  conditions  are  performed." 

"Nor  can  a  State  constitutionally  confirm  a 
"void  patent,  so  as  to  divest  a  title  legally  ac- 
"quired  before  the  attempted  confirmation." 
(Girard  on  Titles  to  Real  Estate.) 

It  is  a  fully  established  principle  of  international 
law,  well  recognized  by  all  legal  authorities,  that  the 
title  to  all  vacant  and  unappropriated  lands  in  the 
realm  is  vested  in  the  supreme  sovereign.  It  has 
been  elsewhere  explained  herein,  that  in  monarchical 
countries  such  title  rests  in  the  Crown,  while  in  demo- 
cratic countries  it  vests  in  the  chief  Legislative  body, 
representing  and  voicing  the  mandates  of  the  people. 

"The  Statute  of  Westminster,  the  Second  to 
"cover  the  case  of  persons  claiming  common  of 
"pasture  by  express  Grant,  seems  to  have  been 
"the  foundation  of  the  common  law  rule,  that 
"the  absence  of  proof  to  the  contrary,  the  soil 


ENGLISH  CROWN  GRANTS  79 

"of  the  Manorial  Waste  or  Common  is  vested 
"in  the  Lord."  (History  of  English  Law, 
Jenks,  262.) 

In  fact,  the  doctrine  is  larger  than  this  statement. 
It  is  conceded  that  the  title  to  all  land  was  vested  in 
the  Sovereign  and  that  the  ultimate  title  to  all  land 
is  now  vested  in  the  Sovereign,  be  it  Crown  or  Legis- 
lature. It  has  become  a  legal  maxim,  "There  is  no 
land  without  a  Lord." 

It  has  been  to  an  extent  and  will  be  further  herein 
set  forth  that  the  Sovereign  had  and  has  power  to 
make  Grants  of  any  part  or  portions  of  the  ungrant- 
cd,  vacant  and  unappropriated  lands  within  the  realm. 
In  certain  circumstances  a  sovereign  may  make  such 
Grants  with  or  without  the  authority  of  the  people, 
in  accordance  with  the  limitations  and  restrictions 
with  which  the  kingly  power  may  be  hedged  about  in 
these  days  of  constitutional  or  otherwise  abridgement 
of  Kingly  powers. 

The  original  conception,  and  in  fact  the  original 
exercise  of  kingly  power,  was  without  let  or  hinder- 
ance.  All  modifications  thereof  and  all  constitutional 
limitations  placed  thereon,  have  been  extorted  from 
the  Crown  by  the  irresistible  assertion  of  the  right 
of  the  people  to  supreme  government  in  the  affairs  of 
men. 

An  English  Crown  Grant  to  land  In  the  English 
realm  carries  with  it  precisely  those  rights  and  privi- 
leges accorded  thereto  by  English  Common  Law  pre- 
vailing at  the  date  of  the  issue  thereof. 

In  dealing  with  Staten  Island  titles  to  lands,  no 
question  can  be  successfully  raised  as  to  the  com- 


8o  ENGLISH  CROWN  GRANTS 

plcte  and  perfect  regularity  thereof.  The  Crown 
Grants  from  which  all  true  titles  on  Staten  Island 
must  descend,  bear  the  full  authority  of  the  English 
Crown,  consented  to  by  the  Council,  which  authority 
was  recognized  by  the  people. 

The  absence  therefrom  of  either  the  Royal  con- 
sent or  confirmation  by  the  Colonial  Council  betok- 
ened an  absolutely  void  Grant.  Such  authorization, 
however,  by  the  Crown  and  Council  renders  such  in- 
struments complete  and  effective. 

"Some,  or  at  least  one  Grant  has  been  made 

"without  the  advice  of  the  Council,  which  is 

"conceived  to  be  against  the  Queen's  Commis- 

"sion  or  instructions."     (Maladministration  of 

affairs  in  New  York,  1709.) 

This  shows  that  the  Council's  approval  of  Crown 
Grants  was  by  the  Sovereign' s  '' instructions"  and  not 
by  any  inherent  right  of  any  subject  of  the  Crown  to 
interfere  in  the  matter. 

Fortunately  all  Grants  made  by  the  English  Crown 
to  land  on  Staten  Island  were  made  during  a  period 
of  English  History  in  which  there  was  no  increase 
or  diminution  of  kingly  authority,  nor  any  variation 
whatever  in  the  rights  of  the  people  in  relation  there- 
to. England  has  no  constitution.  Therefore,  there 
were  no  constitutional  changes,  nor  were  there  any 
variations  in  the  English  Common  Law  governing 
the  rights  of  the  Crown  and  the  rights  of  the  people 
in  respect  to  these  Colonial  lands  during  the  period 
covering  their  Issue. 


ENGLISH  CROWN  GRANTS  8i 

"From  the  passing  of  the  Statute  of  Frauds 
"in  1677,  to  the  assembling  of  the  first  Re- 
"formed  parliament  in  1832  we  have,  as  has 
"been  previously  pointed  out,  hardly  a  single 
"statute  of  first  class  importance  dealing  with 
"land  law."  (History  of  English  Law,  Jenks, 
Page  236.) 

The  discussion,  therefore,  of  such  Grants  as  were 
issued  by  the  Crown  becomes  one  of  regularity  in 
procedure  by  the  Grantor,  compliance  by  the  Grantee 
and  correct  legal  interpretation  thereof.  This  study 
can  be  proceeded  with  under  the  light  of  definite 
knowledge,  as  to  the  Common  Law  of  England  at 
that  time  prevailing,  as  set  forth  in  the  decisions  of 
her  courts  and  the  subsequent  deliverances  from  the 
American  bench. 

Foremost  among  these  governing  opinions  are  the 
decisions  of  the  Court  of  Appeals  of  the  State  of 
New  York.    They  are  consistent,  lucid  and  profound. 

In  speaking  of  the  vacant  and  unappropriated  lands 
in  the  realm,  Digby  says  in  his  History  of  the  Law 
of  Real  Property,  "there  remained  a  very  large  pro- 
portion of  the  land  of  the  country  lying  waste  and 
uncultivated  and  used  only  for  pasture  of  sheep  and 
cattle,  for  feeding  swine  on  the  acorns  and  beech 
mast,  or  for  supplying  wood  for  building,  repairs  and 
fuel.  It  was  primarily  regarded  as  the  common  stock 
from  which  grants  might  be  made." 

Bede,  in  the  eighth  century,  speaks  of  it  as  lands 
which  "ought  to  be  granted  to  ecclesiastics  or  to 
warriors." 

Vacant   and  unappropriated  land  in   early  days 


82  ENGLISH  CROWN  GRANTS 

was  sometimes  designated  "folk  land."  The  title  to 
the  same  was  held  by  the  Crown.  Digby  again  says : 
"Besides  grants  of  folkland,  to  be  held  as  book  land 
or  as  private  property,  it  seems  also  to  have  been 
common  to  allow  individuals  temporary  or  possessory 
rights  over  folk  land  without  altering  its  character  as 
public  lands.  The  reversion  (to  use  a  later  expres- 
sion) still  remained  in  the  community  at  large,  or  in 
the  King  as  the  representative  of  the  community. 
There  is  evidence  that  in  some  cases  various  rents, 
dues  or  services,  in  money  or  time  had  to  be  rendered 
for  the  enjoyment  of  rights  over  folk  land." 

Bede,  in  speaking  of  these  vacant  and  unappro- 
priated lands  said,  "fVhen  the  country  was  brought 
under  the  government  of  a  single  King,  this  land 
seems  to  have  been  regarded  as  in  an  especial  manner 
the  property  of  the  King,  and  is  frequently  spoken  of 
as  the  King's  folk  land." 

He  further  states :  "Besides  the  grant  of  whole  dis- 
tricts of  this  land,  to  be  held  as  'Book  land,'  we  fre- 
quently find  that  rights  of  pasture  and  other  beneficial 
rights  over  it  are  granted  away  to  individuals  by  the 
King  in  the  usual  form.  There  can  be  but  little  doubt 
that  this  unoccupied  land  came  to  be,  more  and  more 
regarded  as  the  land  of  the  King — 'Terra  Regis.' 
Hence  grew  in  later  time  the  conception  that  all  the 
land  was  originally  vested  in  the  Crown;  that  the 
King  is  prima  facia  owner  of  all  the  unoccupied  land, 
even  of  the  shore  of  the  sea  below  high  water  mark." 

In  another  reference  thereto  he  says:  "In  early 
times  these  rights  were  probably  regarded  as  rights 
of  common  or  public  lands  which  the  King  would 
share  with  others.     Later  the  property  was  looked 


ENGLISH  CROWN  GRANTS  83 

upon  as  vested  in  the  King.    The  commoners  having 
rights  in  alieno  solo.'* 

"If  it  be  no  longer  known  of  whom  the  lands 
"are   immediately  holden;   then  the  King,   as 
"Great  and  Chief  Lord,   shall  have  them  by 
"escheat:  for  to  him  fealty  belongs  and  of  him 
"they  are  certainly  holden  by  presumption  of 
"law    and    without    the    necessity    of   proof." 
(Cruise's  Digest  of  the  Laws  of  England  re- 
specting Real  Property   (1808)   Vol.  2,  title 
30.) 

At  the  close  of  the  Revolutionary  War,  the 
Billop  lands  on  Staten  Island  were  escheated  by  the 
State  of  New  York,  on  the  ground  that  the  then 
owner,  (not  the  original)  Christopher  Billop,  "had 
given  aid  and  comfort  to  the  common  enemy." 

Digby  says,  in  his  Law  of  Real  Property,  that  if 
a  grantee  "incurred  forfeiture  for  treason,  the  rights 
of  the  lessor  would  not  be  affected."  In  this  case, 
however,  the  State  of  New  York  had  stepped  into 
the  shoes  of  the  English  Crown  and  had  become  the 
ultimate  owner  of  Billop's  lands,  subject  only  to  any 
Grants  therefrom. 

"A  grant  of  land  has  been  defined  as  a  public 

"law  standing  on  the  statute  books  of  the  State 

"and  is  notice  to  every  subsequent  purchaser 

"under  any  conflicting  sale  made  afterwards." 

(2  U.  S.  App.  581.) 

A  patent  is  conclusive  against  all  whose  rights 
commence   subsequent  to   its   date    (7   Wheat, 


84  ENGLISH  CROWN  GRANTS 

212).  It  conveys  the  legal  title  and  leaves  the 
equities  open.     (15  Peters  93.  ) 

A  patent  of  land  is  the  highest  evidence  of 
title  and  is  conclusive  as  against  the  government 
and  all  claiming  under  junior  patents  or  title 
until  set  aside  or  annulled,  unless  it  is  absolutely 
void  on  its  face.  (2  Wall  525;  23  Howard 
235;  104U.  S.  635.) 

When  the  State  has  once  made  a  valid  grant 
to  lands  to  one  party,  it  cannot  afterwards  re- 
convey  the  same  lands  to  a  different  person. 
(Van  Home  vs.  Torrance,  2  Dall,  304  to  320.) 

It  has  been  held  that  these  provisions,  by  im- 
plication, confirm  all  patents  and  Grants  of  land 
by  the  Crown  prior  to  October  4th,  1775.  (Peo- 
ple vs.  Clarke,  10,  Barb.  120,  Ajffirmed  in  New 
York,  349.) 

Property  rights  acquired  before  the  American  Rev- 
olution were  also  protected  by  provisions  in  the  treat- 
ies of  1783  and  1794,  between  United  States  and 
Great  Britain.  Article  6  of  the  United  States  Con- 
stitution provides  that  all  treaties  made,  or  which 
shall  be  made  under  the  authority  of  the  United 
States  shall  be  the  Supreme  Law  of  the  land. 

The  Federal  Courts,  therefore,  have  jurisdiction 
in  cases  involving  English  Crown  Grants,  which  are 
protected  by  international  treaties. 

The  Thirty  Sixth  section  of  the  Constitution  of 
1777  (New  York  State) ,  declares  that  nothing  there- 
in contained  shall  be  construed  to  affect  any  Grants 
of  land  made  by  the  authority  of  the  King,  prior  to 
the  14th  day  of  October,  1775. 


ENGLISH  CROWN  GRANTS  85 

In  the  case  of  the  People  vs.  Clark  (9  N.  Y.  349) 
the  Court  of  Appeals  of  New  York  declared, 

"the  learned  Justice  of  the  Supreme  Court, 
"whose  able  opinion  in  this  case  we  are  review- 
"ing,  a  most  respectable  authority  upon  ques- 
"tions  of  titles  to  lands  depending  upon  ancient 
"grants,  has  declared  that  this  provision  of  the 
'^Constitution  has  always  been  regarded  as  con- 
'* firming  the  Royal  patents  granted  before  the 
"Revolution." 

In  the  work  entitled,  "Two  Centuries  Growth  of 
American  Law,  by  Members  of  the  Faculty  of  the 
Yale  Law  School,"  the  statement  is  made  that, 

"Before  the  Revolution  the  People  had  ac- 
"customed  themselves  to  the  assertion  that  their 
"charters  had  made  them  certain  irrevocable 
"Grants,  one  of  which  was  that  they  were  to 
"possess  all  the  rights  and  privileges  of  Eng- 
"lishmen." 

The  authors  of  that  work  further  state,  "An  exe- 
cuted grant  is  inviolable,  because  it  is  a  contract.  The 
party  who  made  it  has  lost  certain  rights.  The  party 
who  received  and  accepted  it  has  acquired  them ;  and 
each  must  stand  by  his  bargain." 

"President  Clap,  in  1763,  had  set  up  successfully  a 
similar  claim  as  to  the  Charter  of  Yale  College,  when 
the  General  Assembly  was  threatening  to  amend  it 
without  the  consent  of  the  Corporation."  (Dart- 
mouth College  vs.  Woodward  4  Wheat,  5 18.) 

"The  laws  which  subsist  at  the  time  and  making  of 
the  contract,  and  where  it  is  to  be  performed  enter 


86  ENGLISH  CROWN  GRANTS 

into  and  form  a  part  of  it,  as  if  they  were  expressly 
referred  to,  or  incorporated  in  its  terms."  (White 
vs.  HartU.  B.  13,  Wall  646.) 

The  fundamental  idea  underlying  the  titles  to  lands 
in  the  United  States  is  that  the  State,  "if  one  of  the 
old  Thirteen,"  is  seized  of  all  the  lands  within  her 
limits  not  granted;  and  as  to  the  new  States  and  Ter- 
ritories the  seizen  is  in  the  United  States  to  the  like 
extent.     (Clements  vs.  Anderson,  46  Miss.  581.) 

On  the  Independence  of  New  York,  the  ungranted 
Crown  lands  vested  in  the  State  and  continued  to  be 
granted  by  letters  patent  under  the  Great  Seal.  (N. 
Y.  C.  RR.  Co.  vs.  Brockway  Brick  Company,  158 
N.  Y.  470.) 

In  New  York,  when  by  the  Revolution  the  Colonies 
became  separated  from  the  Crown  of  Great  Britain 
and  a  Republican  Government  was  formed,  the  peo- 
ple succeeded  the  King  in  the  ownership  of  lands 
within  the  State,  which  had  not  already  been  granted 
atuay;  and  the  people  thenceforth  became  the  source 
of  all  private  titles. 

People  vs.  Trinity  Church,  22  N.  Y.  44. 
Jackson  vs.  Hart,  12  Johns  (N.  Y.  77) 
Wendell  vs.  People,  8  Wend.  (N.  Y.  18 


Hart,  12  Johns  (N.  Y.  77). 
People,  8  Wend.  (N.  Y.  183). 


But  with  respect  to  land  that  before  October  14th, 
1775,  had  been  legally  granted  to  individuals  by  the 
Crown,  or  to  which  the  title  had  been  legally  acquired 
by  individuals  in  any  other  way,  neither  the  Revolu- 
tion nor  the  change  in  the  form  of  Government,  nor 
the  declaration  of  the  Sovereignty  of  the  People 
worked  any  change  of  forfeiture  in  the  ownership  of 
such  property."    (Gerard  on  Title  to  Real  Estate.) 


ENGLISH  CROWN  GRANTS  87 

The  Grant  made  by  the  English  Crown  to  the 
Duke  of  York  became  vested  in  the  English  Sovereign 
when  the  Duke  of  York  became  King  of  England. 
The  right  of  the  King  of  Great  Britain  to  make  this 
Grant  to  the  Duke  of  York,  with  all  its  prerogatives 
and  powers  of  government,  cannot  at  this  day  be 
questioned.  "The  rivers,  bays  and  arms  of  the  sea 
and  all  prerogative  rights  within  the  limits  of  the 
charter  undoubtedly  passed  to  the  Duke  of  York,  and 
were  intended  to  pass,  except  those  saved  in  the  letters 
patent.  The  words  used  evidently  show  this  inten- 
tion." (By  Chief  Justice,  Martin  vs.  Waddell,  16 
Peters  367.) 

The  Grants  to  the  Duke  of  York  contain: 
"Together  with  all  the  lands,  island,  soils,  riv- 
"ers,  harbors,  mines,  minerals,  quarries,  woods, 
"marshes,  waters,  lakes,  fishings,  hawking,  hunt- 
"ing  and  fowlings." 

It  will  be  observed  that  this  description  is  even 
more  restricted  than  the  language  in  the  Symes  Staten 
Island  Grant,  to  wit, 

"Together  with  all  and  singular  the  woods,  un- 
"derwoods,  trees,  timber,  feedings,  meadows, 
"marshes,  swamps,  pools,  ponds,  waters,  water 
"courses,  rivers,  rivuletts,  runs  and  streams  of 
"waters,  brooks,  fishing,  fowling,  hunting, 
"hawking,  mines  and  minerals,  standing,  grow- 
"ing,  lying  or  being  or  to  be  had,  used  or  en- 
"joyed  within  the  bounds  and  limits  aforesaid; 
"and  all  other  profits,  benefits,  advantages, 
"hereditaments  and  appurtenances  whatsoever^ 


88  ENGLISH  CROWN  GRANTS 

"unto  the  said  pieces  and  parcels  of  land  and 
"premises,  belonging  or  in  any  way  appertain- 
"ing  (except  and  always  reserved  out  of  this 
"our  present  Grant  all  gold  and  silver  mines)." 

The  language  of  the  Grant  to  Lancaster  Symes 
carries  with  it  all  fullness,  as  far  as  the  same  could 
be  applied  to  the  vacant  and  unappropriated  lands 
on  Staten  Island  and  to  all  vacant  and  unappropriated 
lands  above  and  below  water  within  the  bounds  and 
limits  of  Richmond  County  covering  all  of  the  rights 
received  by  the  Duke  of  York  under  the  original 
Grant  to  him. 

In  the  case  of  Martin  vs.  Waddell  ( i6  Peters, 
367)  the  Supreme  Court  of  the  United  States 
held,  "According  to  the  theory  of  the  British 
"Constitution,  all  vacant  lands  are  vested  in  the 
"Crown,  as  representing  the  nation,  and  ex- 
" elusive  power  to  grant  them  is  admitted  to  rC' 
"side  in  the  Crown,  as  a  branch  of  the  royal 
"prerogative.  It  has  been  clearly  shown  that 
"this  principle  was  as  fully  recognized  in  Amer- 
"ica  as  in  the  Island  of  Great  Britain." 

The  Dutch  were  completely  divested  of  all  lands 
claimed  by  the  English  under  the  Cabot  discovery, 
and  such  title  became  revested  in  the  English  Crown. 
(Fowler's  Real  Property  Law,  2nd  Edition,  Chap,  i. 
Title  2.)  This  issue  was  settled  in  accordance  with 
a  treaty  made  between  England  and  Holland.  The 
Staten  Island  Indians  had  always  protested  that 
deeds  made  by  them  to  the  Dutch  had  been  obtained 


ENGLISH  CROWN  GRANTS  89 

by  fraud,  and  that  the  true  consideration  and  proper 
compensation  had  never  been  paid  to  them  by  the 
Dutch. 

There  was  no  change  in  tenure  under  Crown 
Grants  in  consequence  of  the  passing  of  the  statute 
of  quia  empores  (18  Ed,  i ;  Delancey  vs.  Piepgras, 
N.  Y.  Rep.). 

"The  power  now  possessed  by  the  Govem- 
*'ment  of  the  United  States,  to  grant  lands,  re- 
"sided,  while  we  were  Colonies,  in  the  Crown  or 
"its  Grantees.  The  validity  of  the  title  given  by 
"either  has  never  been  questioned  in  our  Courts. 
"It  has  been  exercised  uniformly  over  territory 
"in  possession  of  the  Indians.  *  ♦  *  All 
"our  institutions  recognize  the  absolute  title  of 
"the  Crown,  subject  only  to  the  Indian  right  of 
"occupancy,  and  recognize  the  absolute  title  of 
"the  Crown  to  extinguish  that  right."  (Will- 
iam B.  Hornblower,  14  Amer.  Bar.  Assn.  Rept. 
264,  265.) 


THE    INDIAN 

AND 

CROWN    GRANTS. 

It  is  a  fully  recognized  fact  of  history  that  when 
the  early  European  settlers  landed  upon  the  shores 
of  Staten  Island  they  then  found  it  in  full  and  com- 
plete possession  of  the  American  Indians.  The 
Indians  held  undisputed  sway  over  its  villages,  hunt- 
ing and  fishing  grounds,  and  stood  prepared  and 
ready- at  any  time  to  defend  the  same,  as  was  clearly 
shown  in  their  subsequent  deeds  of  valor  when  re- 
sisting the  unjust  and  offensive  encroachments  of  the 
early  settlers. 

Authorities  have  somewhat  disagreed  as  to  the  pre- 
cise nature  of  the  title  held  by  the  American  Indians 
to  the  soil  which  they  possessed.  The  continental 
chancellories  of  Europe,  promptly  upon  the  discovery 
of  America,  promulgated  their  decrees  branding  the 
American  Indians  as  nomads.  They  laid  down  the 
proposition  of  international  law  that  the  European 
Government  had  an  absolute  right  to  each  and  every 
land  on  the  American  continents,  which  either  they 
or  their  representative  citizens  should  discover. 

Proprietorship  by  right  of  discovery  was  asserted, 
with  utter  disregard  to  what  were  the  true  and  in- 
alienable rights  of  the  American  Indians. 

Modern  historic  research  has  disclosed  the   fact 

90 


ENGLISH  CROWN  GRANTS  91 

that  the  aborigines  of  America  had  their  established 
and  accepted  forms  of  government;  that  the  various 
tribes  well  understood  and  recognized  the  territorial 
bounds  and  limits  of  their  respective  domains. 

"That  it  is  a  difficult  matter  to  discover  the 
"true  owner  of  any  lands  among  the  Indians  is 
"a  gross  error,  which  must  arise  from  ignorance 
"of  the  matter  or  from  a  cause  which  does  not 
"require  explanation. 

"Each  nation  is  perfectly  well  acquainted  with 
"its  exact  original  bounds;  the  same  is  again 
"divided  into  due  proportions  for  each  tribe  and 
"afterwards  subdivided  into  shares  to  each  fam- 
"ily,  with  all  which  they  are  most  particularly 
"acquainted.  Neither  do  they  ever  infringe 
"upon  one  another  or  invade  their  neighbors' 
"hunting  grounds."  (Sir  William  Johnson  to 
the  Lords  of  Trade,  1764  A.  D.) 

In  some  cases  single  tribes  were  independent,  self- 
reliant,  and  maintained  their  sovereignty  and  the  in- 
tegrity of  their  soil  against  all  comers.  In  other  cases 
a  powerful  confederation  was  formed  by  treaty  be- 
tween a  group  of  tribes.  In  other  instances  weaker 
tribes  came  by  special  treaty  under  the  protection  of 
more  powerful  neighbors. 

To  a  large  extent,  peace  and  happiness  prevailed 
among  the  tribes,  each  respecting  the  rights  of  the 
other  in  and  to  its  own  hunting  and  fishing  grounds. 
Any  invasion  of  these  indispensable  sources  of  food 
supply  was  always  met  by  prompt  defense  and  swift 
and  fierce  retribution. 


92  ENGLISH  CROWN  GRANTS 

A  sharp  distinction  should  be  drawn  between  the 
attitude  of  the  English  Government  towards  the 
Indians  and  the  general  practice  of  the  Colonists 
towards  the  natives. 

The  European  settlers  promptly  appropriated  the 
Indian's  food  supply  from  sea  and  land.  The  great 
pressure  of  a  new  advancing  civilization  forced  the 
coastal  tribes  back  upon  the  neighboring  interior 
tribes,  in  utter  disregard  of  tribal  boundaries.  An- 
tagonism and  conflict  immediately  developed  between 
the  natives,  superinduced  by  the  white  man's  over- 
throw of  the  Indian's  political,  economic  and  tribal 
relations. 

Tribes,  evicted  from  the  lands  which  they  had  in- 
herited from  their  forefathers,  were  driven  by  hunger 
to  pirate  upon  the  hunting  and  fishing  grounds  of 
other  tribes  which  had  heretofbre  been  their  friends. 
The  latter,  unable  to  spare  food  from  their  naturally 
sparse  and  limited  supply,  arose  in  arms  and  fought 
their  former  friendly  neighbors. 

This  invasion  by  the  white  race  upon  the  Indian 
civilization  developed  a  period  of  intertribal  wars 
that  brought  to  the  surface  the  fiercest  elements  in  the 
Indian  nature.  These  wars  continued  until  the  tribes 
became  almost  extinct  or  were  driven  far  from  their 
native  soil. 

The  Indian  first  fought  the  white  man  in  defense 
of  his  own  land,  villages  and  food  supply;  then  the 
various  Indian  tribes  fought  among  themselves,  as 
exiles  and  wanderers  struggling  together  for  an  in- 
sufficient food  supply. 

It  is  well  understood  that  a  majority  of  the  first 
settlers  were  adventurers,  pirates  and  freebooters  of 


ENGLISH  CROWN  GRANTS  93 

the  sea.  In  many  cases  they  were  criminals,  exiled 
from  home,  or  were  wild  and  dissipated  sailors  who 
were  prepared  to  venture  anything,  and  to  commit 
almost  any  crime  in  order  to  repair  their  broken  for- 
tunes. The  "Mayflower"  and  other  ships  with  their 
precious  cargoes  of  religious  and  freedom-loving  ex- 
iles were  like  doves  amidst  the  hawkes  and  vultures 
of  the  sea. 

Information  from  the  early  Colonies  passed  slowly 
to  the  mother  countries.  Vivid  and  distorted  ac- 
counts were  given  of  the  attitude  of  the  natives  and 
the  acts  of  the  settlers.  The  first  impressions  formed 
in  England  and  on  the  continent  of  Europe  regarding 
the  aborigines  were  that  they  composed  roving  and 
cruel  bands,  better  classed  among  the  wild  animals 
of  the  forest  than  to  be  considered  a  part  of  the  hu- 
man family. 

Impressions  formed  and  conclusions  arrived  at  by 
European  authorities  based  upon  such  erroneous  in- 
formation developed  the  doctrine  which  became 
woven  into  international  law,  that  the  American 
Indians  were  nomads  or  wanderers;  that  they  were 
pagans  and  had  no  real  vested  or  true  title  to  the  soil 
they  occupied,  and  that  they  were  unworthy  of  or  in 
fact  did  not  possess  any  real  national  life  or  substan- 
tial political  existence. 

History,  however,  shows  that  the  English  Govern- 
ment soon  became  better  advised,  and  that  the  States 
General  of  Holland  recognized  to  a  degree  the  in- 
justice of  this  dictum  of  the  white  civilization  as  pro- 
nounced against  the  red  man. 

Thoughtful  historians  and  learned  legal  authori- 
ties have  conceded  that  the  Indians  had  somewhat 


94  ENGLISH  CROWN  GRANTS 

more  than  a  possessory  right  to  the  lands  they  occu- 
pied and  have  admitted  that  they  had  an  inherent 
right  in  and  to  the  title  to  the  soil  they  occupied.  The 
title  so  belonging  to  them,  however,  was  vested  in 
the  tribe  at  large  and  not  in  the  individual  Indian. 
Justice  gained  a  few  points  in  the  historic  and  judicial 
triumph  for  the  Indian  over  the  doctrine  of  nomad- 
ship;  but  even  to  this  day,  as  appears  in  one  of  the 
decisions  of  the  Supreme  Court  of  the  United  States, 
the  impression  still  prevails  in  many  authoritative 
quarters,  false  though  it  be,  that  the  Indian  had  only 
a  general  possessory  right  to  their  lands.  (Johnson 
vs.  Mcintosh  8  Wheat  O.  M.,  Rep.  543.) 

In  the  above  mentioned  decision,  emanating  from 
the  most  profound  and  dignified  judicial  body  in  the 
world,  the  Court  says,  "The  potentates  of  the  Old 
World  found  no  difficulty  in  convincing  themselves 
that  they  made  ample  compensation  to  the  inhabit- 
ants of  the  New  by  bestowing  upon  them  civilization 
and  Christianity  in  exchange  for  unlimited  independ- 
ence." 

The  fact  remains  that,  in  a  deed  made  and  exe- 
cuted by  and  between  the  Dutch  and  the  Staten  Island 
Indians  for  the  sale  by  the  latter  to  the  former  of 
Staten  Island,  the  Dutch  fully  recognized  a  complete 
title  to  the  Island  as  vested  in  the  Indians  and  as  hav- 
ing descended  to  them  from  their  forefathers. 

Later  on,  when  the  Staten  Island  Indians  sold 
Staten  Island  to  the  Duke  of  York,  the  Dutch  deed 
having  proved  abortive,  the  English  fully  recognized 
the  title  to  the  soil  as  being  vested  in  the  Indians  and 
as  having  been  derived  by  them  from  their  ancestors. 

These  two  instruments,  both  quasi-official,  repre- 


ENGLISH  CROWN  GRANTS  95 

senting  two  European  powers,  in  effect  committed  the 
civilized  world  to  the  doctrine  that  the  Staten  Island 
Indians  were  the  "true  and  lawful  owners"  of  the 
Island,  as  having  descended  to  them  as  a  heritage 
from  time  immemorial. 

Neither  party  to  an  executed  and  fulfilled  contract, 
under  which  both  parties  have  received  and  approved 
the  benefits  thereof,  is  in  a  legal  position  to  deny  its 
premises. 

In  the  drafting  of  the  foregoing  deed,  which  in 
fact  conveyed  to  the  English  the  villages,  together 
with  the  hunting  and  fishing  grounds  of  the  Staten 
Island  Indians,  neither  party  thereto  deemed  it  essen- 
tial that  the  said  deed  should  set  forth  In  detailed 
description  the  conveyance  thereunder  of  uplands, 
beach,  shore  and  lands  under  water. 

The  English  Crown  well  understood  that  under 
English  common  law  the  presence  of  water  on  any 
portion  of  lands  conveyed  need  not  be  set  forth  in 
the  Instrument  of  conveyance. 

The  Indians  fully  realized,  as  did  the  English,  that 
the  conveyance  of  Staten  Island  to  the  English  Crown 
carried  with  it  the  Indian's  hunting  and  fishing 
grounds  as  well  as  the  latter's  unfailing  source  of 
food  supply,  the  natural  oyster  beds  connected  there- 
with. 

Staten  Island  historians,  as  well  as  many  of  the 
patriarchs  of  the  villages  In  Richmond  County,  tell 
us  that  over  against  many  of  the  old  sites  of  the 
Indian  villages  on  Staten  Island  were  to  be  found 
until  recent  times  enormous  mounds  of  oyster  shells 
that  had  required  the  industry  of  many  generations 
to  accumulate. 


96  ENGLISH  CROWN  GRANTS 

Modern  etymology  has  opened  up  the  secret  of  the 
Indian  languages,  and  lo  !  it  is  found  that  their  rivers, 
bays,  seas  and  lands  possessed  names  with  descriptive 
meanings,  which  names  had  become  traditional 
among  the  descending  generations  and  were  well  and 
fully  understood  by  their  tribes. 

These  names  now  properly  interpreted  are  con- 
clusive proof  that  the  Indians  occupied  fixed  habita- 
tions, generation  after  generation,  "for  a  period  of 
time  wherein  the  memory  of  their  oldest  men  ran 
not  to  the  contrary." 

At  the  present  time  we  find  a  pathetic  remnant  of 
the  Shinnecock  Indians  living  upon  the  site  of  one  of 
their  ancient  Long  Island  villages.  From  time  im- 
memorial down  to  the  present  they  have  maintained 
their  right  in  and  to  a  portion  of  Shinnecock  Bay.  In 
those  waters,  without  failure  for  centuries,  they  have 
planted  and  grown  the  almost  unequalled  Shinnecoct 
oysters  and  clams. 

It  is  an  interesting  fact,  and  worthy  of  note,  that 
in  many  respects  the  Indian  common  larv  was 
strangely  analogous  to  the  English  common  law. 

The  Indian  well  understood  that  he  was  the  owner 
of  the  beach,  with  all  that  the  same  implied.  Hence, 
we  find  a  certificate  given  on  January  1 5th,  1662,  by 
the  Shinnecock  Indians  living  on  Long  Island,  to  one 
Captain  Topping.  In  this  certificate  they  acknowl- 
edge the  conveyance  of  a  certain  beach  to  him. 

The  Indians  did  not  in  anywise  limit  their  titles  to 
the  beach.  This  we  discover  in  an  Indian  deed  to  a 
shore  front  In  King's  Countv,  New  York.  The  deed 
wns  dated  Mav  T3th,  1664.  The  conveyance  was 
for  "both  of  upland  and  marshes  anvway  belonging 


ENGLISH  CROWN  GRANTS  97 

thereto."  We  find  also,  in  the  same  deed  of  convey- 
ance, "beach  or  beaches,  as  namely  that  running  out 
more  westerly."  In  addition  thereto  we  read,  ''with 
the  island  adjoining  and  is  at  the  same  time  by  the 
ocean  sea  wholly  enclosed."  It  is  well  to  consider  the 
legal  force  and  effect  of  the  words  "with"  and  "ad- 
joining" as  used  by  the  Indians. 

We  have  in  the  foregoing  deed  by  the  Indians  a 
conveyance  of  upland,  beaches  "with  the  island  ad- 
joining" thereto.  All  these  were  in  close  proximity 
and  extending  to  and  under  tidal  water.  This  deed 
made  no  reference  to  "riparian  rights"  or  "lands  be- 
low high  water  mark,"  or  "submerged  lands."  The 
language  was  different,  but  equally  clear  and  in- 
clusive. 

The  Indian,  as  under  English  common  law,  deeded 
his  land  and  did  not  consider  water  on  the  land  as 
property  to  be  included  in  a  deed  or  mentioned  in  the 
description  thereof. 

That  the  Indians'  and  the  English  Crown's  views 
as  to  deeds  of  conveyance  for  an  island  coincided 
most  harmoniously  is  happily  illustrated  in  the  case  of 
Gardiner's  Island,  in  Suffolk  County,  New  York. 

On  May  3rd,  1639,  the  Indians  executed  a  deed  of 
conveyance  thereto  to  Lyon  Gardiner.  The  latter 
took  possession  thereof.  The  Gardiner  family  has, 
ever  since  that  date,  maintained  possession  thereof 
through  the  lineal  descendants  of  the  original  grantee. 
They  have  held  against  the  world  a  well  recognized 
and  perfect  title  to  uplands,  the  land  between  high 
and  low  water  mark,  and  the  land  extending  out  into 
and  under  the  great  deep  below  low  water  mark. 

We  find,  however,  in  the  colonial  records  that  the 


98f  ENGLISH  CROWN  GRANTS 

English  Crown  also  made  a  grant  to  the  said  Gar- 
diner, conveying  under  the  grant  the  same  island  with- 
out any  detailed  description  contained  therein  cover- 
ing uplands,  beach  and  shore  with  the  submerged 
lands. 

The  Province  of  New  York  joined  in  this  same 
Grant  by  the  Crown  to  Lyon  Gardiner.  Both  the 
English  Crown  and  the  Province  of  New  York  have 
always  recognized  the  full  and  complete  title  of  the 
said  Gardiner  in  the  beach,  shores  and  the  land  below 
low  water  mark. 

After  the  Revolutionary  War,  and  the  incorpora- 
tion of  the  State  of  New  York,  the  policy  of  the  State 
towards  Gardiner's  Island  was  and  still  is  in  com- 
plete harmony  with  the  policy  of  the  old  Indian,  the 
English  Crown  and  the  Province  of  New  York.  It 
has  never  asserted  or  claimed  any  shore  front  rights 
about  Gardiner's  Island. 

On  the  other  hand,  the  Gardiner  family  has  never 
tolerated  any  trespass  thereon  by  private  citizen  or 
body  politic. 

The  rights  granted  to  Lyon  Gardiner  and  the 
rights  granted  to  Lancaster  Symes,  by  the  English 
Crown,  the  Province  of  New  York  and  the  State  of 
New  York  "are  on  all  fours"  with  each  other,  ex- 
cepting only,  however,  that  from  a  legal  viewpoint 
the  description  of  lands  conveyed  under  the  Symes 
Grant  is  far  more  comprehensive  than  in  the  Grant 
to  Gardiner. 

The  narrow  constructionist  might  imply  from  this 
statement  relating  to  Gardiner's  Island  that  possibly 
the  Indian's  part  in  the  transaction  was  but  a  sale  of 


ENGLISH  CROWN  GRANTS  99 

the  upland,  they  quitting  the  Island  with  no  particu- 
lar thought  as  to  the  lands  under  water. 

Such  a  conclusion  is  but  a  misapprehension  and 
misconception  of  the  Indians'  claim  and  right  of  title. 

On  March  14th,  1648,  the  Indians  made  a  deed  of 
a  certain  tract  of  land  to  Theophilus  Eaton  and 
Stephen  Goodyear.  The  deed  covered  a  tract  of  land 
at  what  was  known  as  Acquabauck,  Long  Island. 
The  deed  recites  "together  with  the  land  and  meadow 
lying  in  the  other  side  of  the  water  southward. 

Here  is  a  deed  given  by  the  Indians  for  land  on 
both  sides  of  and  in  the  waterway,  or  stream.  The 
English  and  the  American  common  law  both  admit 
that  the  Indians  must  have  owned  from  each  shore  to 
the  center  or  thread  of  the  stream.  The  tribe  held 
proprietorship  below  low  water  mark.  The  doctrine 
of  Christendom  is  that  "there  is  no  land  without  a 
Lord." 

Unless  we  strip  the  poor  Indian  of  the  commonest 
rights  accorded  to  the  meanest  citizen  in  England  or 
America  under  similar  circumstances,  this  latter  con- 
veyance by  the  Indians  was  a  proper  exercise  of  the 
rights  of  proprietorship,  as  the  waters  of  the  stream 
were  tidal  waters  and  involved  every  class  of  land 
from  upland  to  submerged  land  below  low  water 
mark.  Most  assuredly  both  parties  to  the  transac- 
tion so  understood  it  and  acted  upon  it. 

To  make  clear,  however,  that  the  Indians  really 
understood  what  the  term  submerged  lands  meant, 
when  making  deeds,  the  Massachusetts  colonial  rec- 
ords disclose  a  deed  made  by  the  native  Indians  in 
which  the  name  used,  "Aupauk,"  in  itself,  when 
translated,  means,  "the  flooded  or  overflowed  land.'* 


100        ENGLISH  CROWN  GRANTS 

The  Indian's  clear,  clean  and  comprehensive 
knowledge  of  his  rights  to  lands  under  water  are  also 
disclosed  in  an  agreement  bearing  date  1665,  which 
reads  as  follows: 

"The  bounds  agreed  upon  between  the  Shinnecock 
and  the  Unchechauke  Indians  before  the  Governor 
Nicoll  are,  "That  the  Shinnecock  bounds  to  the  west- 
ward are  to  Apaucock  Creek.  That  the  Unchechauke 
bounds  to  the  east  are  Apaucock  Creek ;  that  the  mid- 
dle of  the  river  is  the  utmost  bounds  to  each,  but  that 
either  nation  may  cut  flaggs  for  their  use  on  either 
side  of  the  river  without  molestacon  or  breach  of  the 
Limetts  agreed  I"  (Book  of  Deeds,  Vol.  II,  p.  125, 
Office  of  Secretary  of  State,  Albany,  N.  Y. ) 

This  agreement  clearly  shows  that  two  neighbor- 
ing Indian  tribes  claimed  and  each  recognized  in  the 
other  title  to  lands  under  water.  The  agreement  also 
contains  a  reciprocity  clause  that  would  have  done 
credit  to  the  Hon.  James  G.  Blaine  or  to  the  Hon, 
John  Hay. 

In  the  year  1667  the  inhabitants  of  South  Hamp- 
ton, in  New  York  Province,  brought  an  action  against 
the  inhabitants  of  Southold  in  the  New  York  Provin- 
cial Court  of  Assize  to  determine  the  boundary  be- 
tween the  two  towns  based  upon  the  purchase  of  lands 
from  the  different  Indian  tribes,  A  witness  by  the 
name  of  Edmund  Shaw  testified  that  the  Chief  of  the 
Montauk  Indians  had  shown  him  that  one  tribe 
owned  the  land  to  high  water  mark  on  the  opposite 
side  of  the  river,  and  to  prove  It  took  him  to  the  op- 
posite bank  and  showed  him  a  tree  marked  by  the 
Indians,  Two  Indians  were  called  to  rebut  that  tes- 
timony.    They  testified  that  each  of  the  two  tribes 


ENGLISH  CROWN  GRANTS         loi 

on  the  opposite  sides  of  the  river  owned  to  the  center 
or  thread  of  the  stream.  To  prove  this  they  related 
how  a  dead  bear  was  found  floating  in  the  stream  and 
its  carcass  was  divided  between  the  two  tribes,  one 
tribe  taking  the  flesh  and  the  other  tribe  the  skin  and 
the  grease.  The  Court  decided  that  each  tribe's  title 
extended  to  the  middle  of  the  stream.  This  was  a 
tidal  river. 

Important  and  incontrovertible  evidence  is  at  hand 
revealing  the  fact  that  the  Indians  held  proprietor- 
ship to  their  fishing  grounds  on  the  Atlantic  Coast  as 
an  absolutely  necessary  and  vital  source  of  food  sup- 
ply and  that  it  was  their  custom  to  resort  thereto  in 
time  of  famine  as  well  as  in  time  of  plenty. 

We  quote  from  a  letter  written  by  Roger  Williams 
to  Governor  Vane  in  1637 :  "The  Pequots  are  scarce 
of  provision  and  therefore  (as  usual,  so  now  espe- 
cially) they  are  in  some  numbers  come  down  to  the 
seaside  (and  to  islands  by  name  Munnawtawkit  and 
Manattuwond  especially)  to  take  sturgeon  and  other 
fish,  as  also  to  make  new  fields  of  corn  in  case  the 
English  should  destroy  their  fields  at  home." 

It  is  a  well-known  fact  that  the  early  settlers  found 
the  Indian  with  his  fishing  weirs  established  in  the 
tidal  streams.  The  Colonists  quickly  imitated  him  in 
this  practice,  and  in  instances  secured  Grants  for  the 
establishment  of  the  same,  by  them,  in  navigable 
waters.  We  have  in  point  Governor  Andrus's  Grant 
made  in  1676  to  John  Cooper,  giving  to  the  latter  the 
right  to  establish  fishing  weirs  in  two  tidal  streams  on 
Long  Island. 

In  order  to  throw  additional  light  on  this  subject, 
it  may  be  stated  that  there  were  many  places  along 

amVERSITY  OF  SOUTHERN  CALIFORNIA  UBRARi 


.I02         ENGLISH  CROWN  GRANTS 

the  Atlantic  Coast  referred  to  and  described  in  deeds 
by  the  Indians,  which,  when  interpreted,  mean  "fish- 
ing places."  As  fishing  is  not  for  the  uplands,  it  is 
fair  and  logical  to  presume  that  such  places  so  re- 
ferred to  in  deeds  made  by  the  Indians  comprehended 
lands  under  water. 

The  wardship  thrown  about  the  American  Indians 
by  the  English  Government  in  Colonial  times  was  not 
an  impairment  or  in  derogation  of  the  proprietor- 
ship rights  of  the  American  Indians,  either  tribal  or 
as  individuals. 

So  keen  was  the  commercial  instinct  in  the  white 
race  and  so  innocent  and  unsophisticated  were  the 
American  Indians  in  the  matter  of  bargain  and  sale, 
that  had  the  English  Government  not  thrown  about 
the  Indian  tribes  its  paternalistic  protection  in  the 
matter  of  the  title  to  their  villages,  fishing  and  hunt- 
ing grounds,  the  deceit  and  treachery  of  many  of  the 
early  settlers  would  have  precipitated  many  addi- 
tional frontier  conflicts. 

Pursuant  to  such  benign  policy,  the  English  Gov- 
ernment, when  having  political  jurisdiction  over  lands 
owned  and  possessed  by  the  Indians,  would  not  per- 
mit the  native  tribes  to  sell  their  lands  to  the  settlers 
without  the  sanction  of  the  Crown.  Apparently  this 
power  asserted  by  the  English  Government  was 
never  used  arbitrarily  against  the  natives. 

It  was  not  in  essence  the  denial  of  a  title  in  and  to 
the  right  on  the  part  of  the  Indian  to  sell  the  land  in 
question.  It  was  but  a  regulation  under  the  police 
power  pertaining  to  political  sovereignty  and  solely 
exercised  for  the  protection  of  the  natives  against  un- 
scrupulous traders. 


ENGLISH  CROWN  GRANTS         103 

Until  the  year  1 87 1  the  policy  of  the  Federal  Gov- 
ernment of  the  United  States  was  strictly  correct  in 
its  professed  attitude  toward  the  respective  Indian 
tribes  as  independent  sovereignties.  It  conceded  to 
them  the  right  of  treaty  with  the  United  States  Gov- 
ernment upon  terms  of  national  equality.  Many 
treaties  were  made  between  the  Federal  Government 
and  the  respective  tribes,  in  reference  to  lands  owned 
by  the  Indians,  as  well  as  matters  of  trade  and  other 
relations. 

International  law  does  not  admit  wandering  tribes 
and  roving  bands  into  the  sisterhood  of  nations. 
Where  great  Sovereign  powers,  like  the  Federal  Gov- 
ernment of  the  United  States  enters  into  treaty  rela- 
tions with  political  organizations  on  a  plane  of  equal- 
ity and  mutual  respect,  it  is  in  itself  an  admission  of 
nationality,  which  carries  with  it  not  only  independ- 
ent political  sovereignty  but  fixed  habitation  on  lands 
of  independent  proprietorship. 

It  is  true  that  the  Federal  Government  prohibited 
the  Indian  tribes  in  the  United  States  from  making 
or  entering  into  treaties  with  political  powers  other 
than  the  Federal  Government.  This  had  nothing 
to  do  with  the  sovereignty  or  proprietorship  rights 
of  the  Indians,  excepting  only  that  the  necessity  of 
defense  of  its  national  life  compelled  such  an  attitude 
on  the  part  of  the  Federal  Government. 

"Necessity  is  paramount  to  law." 


RIPARIAN  RIGHTS 

AND 

CROWN  GRANTS 

It  is  an  interesting  fact  that  when  the  Duke  of 
York  purchased  Staten  Island  of  the  American  In- 
dians, the  same  became  a  part  of  the  Crown's  private 
Manor  of  East  Greenwich  in  the  County  of  Kent  in 
England.  It  was  to  that  manorial  office  that  Queen 
Anne  required  ultimate  accounting  to  be  made,  by 
her  American  representatives,  of  the  quit-rents  col- 
lected by  them  from  this  portion  of  her  East  Green- 
wich estate.  In  other  words,  the  English  Crown 
made  leases  to  its  subjects  of  properties  in  East 
Greenwich,  England,  connected  with  the  estate  there. 
Simultaneously  and  in  like  manner  and  form  it  made 
leases  or  grants  to  portions  of  the  same  estate  on 
Staten  Island.  The  Crown's  tenure  of  land  on  Staten 
Island  was  the  same  as  its  tenure  in  East  Greenwich, 
England. 

As  Staten  Island  was  strictly  manorial  property 
of  the  English  Crown,  or  at  least  property  owned 
by  the  Crown  through  private  purchase,  the  Island 
had  in  no  wise  a  quasi-public  character.  All  the  lands 
above  and  below  water  and  between  high  and  low 
water  mark  on  Staten  Island  were  in  the  Crown's 
private  proprietorship.  The  public  had  no  right  or 
title  in  the  uplands,  in  the  lands  between  high  and 

104 


ENGLISH  CROWN  GRANTS         105 

low  water  mark,  or  in  the  lands  beyond  and  below 
low  water  mark  in  the  County  of  Richmond.  The 
title  to  the  entire  Island  was  vested  in  the  English 
Crown,  without  let  or  hindrance.  Therefore  the 
public  did  not  then  have,  nor  has  the  public  since  that 
time,  ever  had,  by  implication  or  otherwise,  any  right, 
title  or  interest,  except  by  escheat  or  purchase,  in  any 
lands  on  Staten  Island. 

The  State  of  New  York  inherited  or  succeeded  to 
no  title  to  any  lands  on  Staten  Island,  hence  its  true 
and  correct  disavowment  of  any  such  ownership,  as 
made  by  the  office  of  the  Secretary  of  State  at  Albany, 
the  Land  office  and  the  State  Surveyor  and  Engineer. 

The  doctrine  of  riparian  rights,  as  commonly 
understood,  does  not  apply  and  never  has  applied  to 
Staten  Island  lands.  It  is  indisputably  true  that 
each  and  every  Grant  made  by  the  English  Crown 
to  lands,  regardless  of  where  or  how  situated,  is 
limited  to  the  express  terms  of  the  said  Grant.  Such 
a  Grant  cannot  and  never  has  been  construed  as  im- 
plying, as  against  the  Crown,  any  more  rights  and 
privillges  than  clearly  stated  therein.  The  lesser 
title  (the  subjects  title)  can  never  presume  as  against 
the  greater  title  (the  Crown's  title),  unless  the  hab- 
endum to  the  Grant  by  proper  qualifications  shifts 
such  presumption,  as  it  does  in  the  Grant  to  Lan- 
caster Symes  covering  lands  on  Staten  Island. 

Judge  Mason,  in  the  case  of  Furman  vs.  the  Mayor 
of  New  York  (Superior  Court  1851),  In  passing 
upon  a  question  of  a  claim  by  riparian  owners  to 
rights  against  the  Crown  covering  lands  below  high 
water  mark,  brushed  it  aside  by  stating: 


iq6         ENGLISH  CROWN  GRANTS 

"There  cannot  be  two  owners  to  the  same 
"piece  of  land,  under  the  conditions  set  forth." 

He  further  added:         ^ 

"If  the  owner  has  the  estate  in  fee  it  follows 
"that  it  can  be  granted.  There  is  no  such  quali- 
"fication  in  the  books  that  the  soil  be  granted  to 
"any  person  But  the  riparian  proprietor." 

Lord  Hale  quoted  two  leading  decisions  (De  Por- 
tubus  P.  13)  in  which  it  was  held  that  the  riparian 
proprietors,  owners  of  the  upland  or  river  hank,  had 
no  legal  claim  as  against  the  King  to  any  land  below 
high  water  mark. 

In  other  words,  the  owner  of  the  bank  of  a  tidal 
stream  or  navigable  water  had  under  English  Com- 
mon Law,  no  legal  claim  to  what  we  now  term  to  be 
"riparian  rights"  as  against  the  Crown  title  to  lands 
below  high  water  mark. 

"No  reason  suggests  itself  why  the  defend- 
"ants  should  have  a  higher  right  against  the 
"Grantees  of  the  King  than  they  would  have 
"held  against  the  Sovereign  of  Great  Britain, 
"had  he  continued  the  owner  of  the  soil." 

(Trustee  of  Town  of  Brookhaven  vs.  Smith, 
188,  N.  Y.,  74.) 

This  doctrine  is  uniformly  held  by  our  courts.  The 
riparian  rights  are  recent  and  statutory  and  relate  to 
lands  not  previously  granted  and  now  owned  by  the 
State. 

"Gore  was  the  owner  of  the  uplands  adjoin- 
"ing  the  lands  under  water  embraced  in  the 


ENGLISH  CROWN  GRANTS         107 

"Grant.  The  ownership  of  the  adjacent  up- 
"lands,  however,  gave  him  no  title  to  or  interest 
"in  the  lands  under  water  in  front  of  his  prem- 
"ises.  The  titles  to  lands  under  water  within 
"the  realm  of  England  were  by  common  law 
"deemed  to  be  vested  in  the  King  as  a  public 
"trust,  to  subserve  and  protect  the  public  right 
"to  use  them  as  common  highways  for  com- 
"merce,  trade  and  intercourse." 

"The  King  by  virtue  of  his  proprietary  inter- 
"est  could  grant  the  soil  so  that  it  should  be- 
"come  private  property,  but  his  grant  was  sub- 
"ject  to  the  paramount  right  of  public  use  of 
"navigable  waters,  which  he  could  neither  de- 
"stroy  nor  abridge." 

(People  vs.  The  Staten  Island  Ferry  Co., 
68N.  Y.  71.) 

The  use  of  navigable  waters  for  commercial  pur- 
poses and  the  title  to  the  land  under  such  waters  are 
an  entirely  separate  and  different  proposition. 

Upon  the  termination  of  monarchical  sovereignty 
in  New  York,  the  State  acquired  all  of  the  rights  of 
the  English  Crown  in  and  to  lands  wherever  situ- 
ated but  subject,  nevertheless  to  any  and  all  rights 
previously  granted  by  the  English  Crown.  The 
Grants  so  made  by  the  English  Crown  prior  to  the 
American  Revolution  were  guaranteed  by  the  Ameri- 
can Government  in  its  treaties  with  Great  Britain  and 
are  also  guaranteed  by  the  various  constitutions 
adopted  by  the  State  of  New  York. 

Therefore,  neither  the  Federal  Government  at 
Washington,  nor  the  State  Government  at  Albany, 


io8         ENGLISH  CROWN  GRANTS 

nor  the  City  Government  of  Greater  New  York,  nor 
the  people  at  large  have  any  right,  title  or  interest 
in  or  to  any  lands  properly  granted  to  private  parties 
by  the  English  Crown,  regardless  of  whether  such 
lands  are  above  or  below  water,  or  between  high  and 
low  water  mark. 

The  present  theory  of  riparian  rights,  as  held  in 
the  popular  mind,  developed  largely  from  the  habit 
of  the  people  sailing  upon  the  sea  to  find  at  all  times 
and  under  all  conditions  a  harbor,  a  haven  of  refuge, 
or  a  landing  on  the  shore  without  let,  hindrance  or 
trespass.  It  also  arose  from  the  theory  that  the  land 
owner  on  the  shore  was  the  only  one  excepting  the 
King,  who  could  protect  the  same  against  those  who 
would  otherwise  trespass  and  take  possession  of  land 
under  water  immediately  adjacent  to  his  upland  on 
shore.  He  could  best  guard  the  shores  against 
poachers,  pirates  and  smugglers.  He  could  shoot  his 
arrows,  throw  his  lances,  or  discharge  his  firearms 
from  his  shore  at  an  enemy  seeking  to  land  or  to 
anchor  his  boat  near  the  beach. 

"The  right  of  jurisdiction  and  the  right  of 
"property  must  not  be  confounded."     (Delancy 
vs.  Piepgras.) 

This  riparian  right  of  jurisdiction  recognized  as 
pertaining  to  land  between  high  and  low  water  mark 
and  in  favor  of  the  littoral  proprietor  was  secondary 
or  subservient  to  the  King's  title  to  all  lands  under 
the  tidal  seas  and  was  exercised  by  a  servant  of  the 
Crown. 

The  Freedom  of  navigation  is  admitted.  The  use 
of  the  waters  for  commercial  purposes  is  recognized. 


ENGLISH  CROWN  GRANTS         109 

but  on  the  contrary  New  York  has  penalized  trespass 
upon  lands  granted  under  tidal  waters. 

The  Crown  might  have  delegated  jurisdiction  to 
the  owner  of  the  upland  for  military  purposes,  that 
the  latter  might  aid  his  sovereign  in  defense  of  the 
sea.  The  littoral  owner  might  have  stood  guard  over 
the  shore  for  his  sovereign,  against  hostile  trespass 
by  the  King's  enemies.  "The  King  maintained  pos- 
session of  the  lands  under  the  great  deep  through  his 
mighty  navy."  The  King's  subjects  settled  along  the 
shore  and  sustained  a  watch  for  him  over  the  land- 
ing places  where  the  tide  ebbed  and  flowed,  but  this 
loyal  attitude  gave  such  subjects  no  implied  right  to 
confiscate  from  the  Crown  the  lands  so  guarded  by 
them. 

The  same  principle  was  adopted  by  the  world  pow- 
ers in  according  political  sovereignty  to  a  nation  over 
what  is  known  as  the  "three  mile  shore  limit."  At 
the  time  of  the  adoption  of  this  principle  the  utmost 
reach  of  the  cannon  efFectively  used  by  the  nations 
was  a  distance  not  exceeding  three  miles  from  the 
shore. 

Exponents  of  international  law  are  now  agitating 
the  extension  of  this  limit  to  20  miles,  in  consequence 
of  the  greater  range  of  modern  guns. 

In  the  Act  settling  the  boundary  between  New 
York  and  New  Jersey,  enacted  by  the  Legislature 
of  the  State  of  New  York  on  February  5,  1834,  in 
Article  V,  Sec.  2  it  is  provided  that, 

"The  State  of  New  York  shall  have  the  ex- 
"clusive  jurisdiction  over  the  wharves,  docks  and 
"improvements  made  and  to  be  made  on  the 


no         ENGLISH  CROWN  GRANTS 

"shore  of  Staten  Island  and  of  and  over  all  ves- 
"sels  aground  on  said  shore,  or  fastened  to  any 
"such  wharf  or  dock,  except  that  the  said  ves- 
"sels  shall  be  subject  to  quarantine  or  health 
"laws  and  laws  relating  to  passengers  of  the 
"State  of  New  Jersey  which  now  exist  or  may 
"hereafter  be  passed." 

Here  we  have  an  express  declaration  on  the  part 
of  the  Legislature  of  the  State  of  New  York  that 
Staten  Island  has  "shores."  There  can  be  no  distor- 
tion of  language  or  straining  of  the  true  intent  of  the 
words  used  when  we  say  that  the  Legislature  stands 
committed  of  record  that  such  shores  belong  to  Staten 
Island.  It  further  recognizes  that  certain  wharves, 
docks  and  improvements  have  been  made  and  are  to 
be  made  on  said  shores,  etc.  Neither  the  Federal 
nor  the  State  Courts  differ  as  to  the  fact  that  "the 
shore  is  that  piece  or  tract  of  land  between  high  and 
low  water  mark." 

No  citations  are  necessary  to  support  this 
thoroughly  known  and  understood  proposition  of 
law. 

The  legal  conclusion  has,  however,  been  summar- 
ized as  follows : 

"The  shore  is  that  space  of  land  on  the  bor- 
"der  of  the  sea  which  is  alternately  covered  and 
"left  dry  by  the  rising  and  falling  of  the  tide, 
"or  in  other  words,  the  space  between  high  and 
"low  water  mark." 

(Amer.  &  Eng.  Encyl.  of  Law  "Shore.") 
"The  State  having  granted  in  fee  a  strip  of 
"land  under  water  extending  from  high  water 


ENGLISH  CROWN  GRANTS         iii 

"mark  cannot  thereafter  give  another  the  right 
"to  erect  a  public  dock  thereon." 

(DeLancey  vs.  Wellbrock,  113  Fed.  103.) 

The  argument  as  to  the  non-ownership  by  either 
the  City  of  New  York  or  the  State  of  New  York 
in  and  to  any  land  on  Staten  Island  between  high 
and  low  water  mark  is  a  simple  and  plain  one.  The 
Indians  owned  the  title  in  fee  to  Staten  Island.  This 
was  admitted  by  Holland  and  England  in  deeds 
drawn  by  them  with  the  Staten  Island  Indians,  which 
deeds  were  ratified,  confirmed  and  are  matters  of 
public  record.  These  deeds  admitted  the  descent  of 
title  in  all  lands  on  Staten  Island  to  the  Indians,  and 
that  such  descent  was  by  inheritance  from  their  fore- 
fathers. Thereupon  the  English  took  title  and  pos- 
session of  all  lands  on  Staten  Island  by  purchase  from 
the  Indian  owners. 

Later  the  English  made  Grants  of  certain  lands  on 
Staten  Island  and  then  made  a  final  and  inclusive 
Grant  to  Lancaster  Symes  covering  all  the  vacant  and 
unappropriated  lands  on  Staten  Island  within  the 
bounds  and  limits  of  Richmond  County. 

The  State  of  New  York,  for  a  valuable  cash  con- 
sideration subsequently  confirmed  and  ratified  the 
title  in  Lancaster  Symes.  It  recognizes,  as  all 
authorities  do,  that  all  waters  about  Staten  Island  in- 
cluding the  Fresh  Kills  are  tidal  waters.  The  Legis- 
lature admits  that  Staten  Island  has  a  "shore."  It 
is  very  trite  to  say  that  the  shore  is  land  between 
high  and  low  water  mark,  is  on  the  Island  and  a 
part  of  it. 


112         ENGLISH  CROWN  GRANTS 

Nearly  all  Staten  Island  Grants  were  limited  to 
high  water  mark. 

The  Crown  Grant  to  Ellis  Duxbury  (March  19th, 
1691 )  and  the  second  Crown  Grant  to  Ellis  Duxbury 
(August  26th,  1708)  both  include  and  Grant  to  him 
a  shore  front  of  great  extent  and  value,  "to  low 
water  mark  thence  by  low  water  mark  rounding  as 
it  runs." 

If  the  English  Crown  could  and  did  properly  and 
legally  grant  miles  of  land  on  Staten  Island  between 
high  and  low  water  mark,  it  is  conclusive  proof  that 
land  between  high  and  low  water  mark  on  Staten 
Island  was  a  part  of  the  Crown's  estate.  When  the 
Crown  granted  to  Lancaster  Symes  (October  27th, 
1708)  all  of  its  unappropriated  lands,  he  unques- 
tionably obtained  title  to  the  then  ungranted  lands 
between  high  and  low  water  mark. 

The  final  grant  to  Lancaster  Symes  covered  and 
included  all  vacant  and  unappropriated  lands  on 
Staten  Island  to  "the  bounds  and  limits  of  Richmond 

County." 

^    ■  I     ■■■     - 

The  human  mind  is  helpless  in  any  attempt  to  con- 
ceive any  theory  upon  which  these  admittedly  "vacant 
and  unappropriated  lands,"  between  high  and  low 
water  mark,  constituting  the  "shore"  of  Staten  Island, 
can  possibly  be  excluded  from  the  scope  of  the  Grant 
made  by  Queen  Anne  to  Lancaster  Symes. 

The  Courts  hold  that  when  the  State  has  once 
made  a  valid  grant  of  lands  to  one  party  it  cannot 
afterwards  reconvey  the  same  lands  to  a  different 
person. 


ENGLISH  CROWN  GRANTS         113 

Under  modern  statuatory  enactments  the  Courts 
consistently  hold  that, 

"A  grant  by  the  State  of  New  York  of  land 
"under  water  between  high  and  low  water  mark 
"Is  absolutely  void  If  made  to  any  other  than 
"to  the  owner  of  the  upland  adjacent  thereto." 

(The  Champ.  &  St.  Law.  R.  R.  Co.  vs.  Val- 
entine Barb.  19,  484.) 

As  a  corollary  thereto,  Courts  are  bound  to  and 
do  decree  that  any  Grant  made  by  the  State  of  New 
York  to  lands  under  water,  which  lands  had  been 
previously  granted  by  the  Crown,  is  void. 

The  United  States  Federal  decisions  are  very  clear 
on  this  point. 

"A  statute  which  purports  to  convey  only 
"such  right  of  title  as  the  State  may  have,  be  it 
"valid  or  Invalid,  Is  not  unconstitutional  as  im- 
"palrlng  the  contract  or  vested  rights  of  persons 
"holding  under  valid,  prior  Independent  titles." 

(Devlne  vs.  Los  Angeles,  202  U.  S.  313, 

335-) 

It  has  been  held  that, 

"The  doctrine  that  private  property  shall  not 
"be  taken  without  due  process  of  law,  nor  wlth- 
"out  compensation  being  made  therefor  applies 
"to  private  property  devoted  to  public  use. 
"Confiscation  without  compensation  is  repug- 
"nant  to  the  due  processes  and  equal  protec- 
"tlon  clauses  of  the  14th  Amendment  in  the 
"United  States  Constitution." 


114         ENGLISH  CROWN  GRANTS 

The  Court  has  also  by  decree  duly  warned  the 
public  that, 

"Where  money  is  voluntarily  paid  to  a  re- 
"ceiver  of  the  land  office  after  a  party's  atten- 
"tion  has  been  called  to  a  legal  risk  attending 
"such  an  act,  the  payment  must  be  regarded  as 
"made  in  mistake  of  law  and  not  in  mistake  of 
"fact  and  an  action  will  not  lie  to  recover  it 
"back."     (Encyl.  of  the  U.  S.  Supreme  Court 

Reports  "Public  Lands.") 

"When  the  land  between  high  and  low  water 

"mark  has  been  granted  to  another,  the  upland 

"proprietor  has  no   right  to  land  below  low 

"water  mark."     (Sage  vs.  the  Mayor  of  New 

York,  154  N.  Y.  154.) 

At  the  present  time  it  is  and  for  many  years  it 
has  been  unlawful  in  the  State  of  New  York  for  the 
Land  Office  to  issue  any  grant  to  land  between  high 
and  low  water  mark,  excepting  to  the  owner  of  the 
uplands.  This  is,  however,  by  special  enactment.  "It 
was  not  always  thus."  It  was  not  so  in  Colonial 
days,  during  which  period  every  Staten  Island  Grant 
was  made. 

It  has  been  very  pertinently  held  that  "a  right  to 
the  soil  is  very  different  and  distinct  from  a  mere 
right  to  have  the  first  offer  when  the  owner  is 
obliged  to  sell.  Yet  even  the  latter  is  inconsistent 
with  the  entire  power  over  a  perfect,  absolute  estate 
in  fee." 

In  the  case,  however,  of  (Beach  vs.  the  Mayor) 
the  Grant  of  land  under  water  made  by  the  State  of 
New  York,  to  one  Ward  and  others,  jointly,  cover- 


ENGLISH  CROWN  GRANTS         115 

ing  lands  about  Ward's  Island  in  the  East  River,  the 
Court  held  such  Grant  valid.  This  was  so  held,  not- 
withstanding the  fact  that  there  were  certain  upland 
owners  who  were  not  included  among  the  Grantees. 
The  Court  took  the  same  position  in  the  case  involv- 
ing the  Grant  made  by  the  State  of  New  York  to 
land  under  water  about  City  Island,  where  other 
upland  owners  were  not  included  among  the 
Grantees. 

These  two  Grants  were  made  by  the  State  prior  to 
the  enactment  of  the  present  statute  prohibiting 
Grants  of  riparian  rights  to  parties  other  than  up- 
land proprietors. 

"The  owner  of  land  bordering  on  high  water 
"mark  on  the  tide  waters  of  the  State  who  has 
"not  obtained  the  State  titles  to  the  lands  lying 
"in  front  of  his  property  and  below  high  water 
"mark,  has  no  power  to  charge  the  latter  with 
"any  easement  which  will  be  forceful  against  a 
"subsequent  grant  by  the  State  of  its  title  on 
"those  lands." 

(Atlantic  City  vs.  New  And  Pier  Co.  63  N. 
J.  644.) 

"The  Andros  patent,  dated  September  29th, 
"1677,  includes  the  lands  between  high  and  low 
"water  mark  and  substantially  all  of  the  waters 
"of  Oyster  Bay  Harbor." 

(Condert  vs.   Underbill,    167   App.   Div. 

335-) 

"Under  the  Common  Law  as  it  existed  in 
"1693  a  littoral  proprietor  had  no  right  to  main- 


ii6         ENGLISH  CROWN  GRANTS 

"tain  a  wharf  or  other  structure  on  land  between 
"high  and  low  water  mark." 

(Trustees  Town  of  Brookhaven  vs.  Smith, 
188N.  Y.  74.) 

(Reversed  on  other  grounds  but  this  prin- 
ciple held.) 

"The  mere  fact  that  in  the  iQtH  century  the 
"Crown  was  a  mere  trustee  for  the  benefit  of 
"the  public  should  not  be  utilized  to  deprive 
"individuals  of  rights  which  they  had  acquired 
"from  it  at  a  time  when  it  had  unquestioned 
"authority  to  grant  the  right."  (Water  and 
Water  Rights,  Famham,  Vol.  i,  P.  191.) 

It  certainly  had  the  right  to  make  such  Grant  in 
the  1 8th  century  from  its  personal  Crown  estate. 


PUBLIC  BATHING  PLACES 

AND 

CROWN  GRANTS 

The  English  Common  Law  doctrine  that  the  peo- 
ple have  the  right  to  pass  to  and  fro  between  high 
and  low  water  mark  on  tidal  and  navigable  water  is 
part  of  the  outgrowth  of  the  humanitarian  principle 
that  inhabitants  of  uplands  have  an  inalienable  right 
of  exit  from  and  ingress  to  the  sea  for  commercial 
and  fishing  purposes,  as  well  as  for  the  privilege  of 
travel. 

Such  egress  and  ingress  are  based  upon  the  simple 
right  of  direct  passage  between  upland  and  water. 
The  people  at  the  present  time,  however,  seek  to 
establish  the  right  of  passage  at  their  will,  and  to 
meander  to  any  distance  along  the  shore  between 
high  and  low  water  mark,  thereby  seeking  to  give  to 
such  strip  of  land  the  characteristics  of  a  public  high- 
way. This  claimed  right  on  the  part  of  the  public 
appears  to  be  coming  into  qualified  favor  with  the 
Courts.  In  some  cases  it  has  been  held  that  if  ad- 
mitted the  said  usage  must  be  one  of  continuous  pas- 
sage, and  not  of  delay,  detention  or  obstruction. 

The  Courts  clearly  and  consistently  hold  that  this 
right  pertains  exclusively  to  ungranted  lands  and 
never  to  lands  previously  granted. 

It  is  judicially  settled  that  in  no  event  can  the  pub- 

117 


ii8         ENGLISH  CROWN  GRANTS 

lie  erect  thereon  any  structure  or  in  anywise  conduct 
themselves  in  a  manner  that  will  interfere  with  the 
freest  use  thereof,  by  the  sovereign  owner.  A  Crown 
Grantee  thereof  has  admittedly  in  himself  the  exclu- 
sive rights  theretofore  possessed  by  the  Crown  and 
people. 

It  is  settled  that  the  owner  of  the  upland  must  not 
interfere  with  the  free  and  unrestrained  movement 
of  the  public  along  the  strip  of  land  between  high 
and  law  water  mark  if  the  same  has  not  been  previ- 
ously granted.  Such  use  by  the  public  is  founded 
upon  custom  and  usage  and  obtains  while  the  title 
thereto  remains  vested  in  the  Crown  or  State,  but 
ceases  when  by  Grant  the  shore  becomes  private  prop- 
erty. Such  use  by  the  public,  however,  may  be  for- 
bidden by  the  Crown. 

This  free  and  unlimited  range  of  movement 
claimed  by  the  public  along  the  shores  of  navigable 
streams,  but  confined  and  restricted  between  high  and 
low  water  mark  had  a  unique  genesis.  It  was 
founded  upon  a  custom  based  upon  a  commercial 
necessity,  but  which  custom  is  now  extinct. 

In  the  earlier  days  of  English  navigation,  vessels 
that  sailed  the  high  seas  of  commerce  and  which 
found  their  motive  power  in  wind  and  canvass  and 
not  in  the  galley  slave,  impressed  seamen,  or  steam, 
were  somewhat  unwieldy  in  narrow  waters  and  were 
difficult  to  navigate  on  small  winding  English  rivers. 
Frequently  these  commercial  vessels  appeared  at  the 
mouth  of  a  navigable  stream  and  sought  to  steer  their 
way  to  commercial  towns  and  villages,  situated  there- 
on at  a  distance  in  from  the  sea.     At  times  it  became 


ENGLISH  CROWN  GRANTS         119 

necessary  to  tow  these  vessels,  by  horse  power,  to 
such  interior  ports  or  destinations. 

Under  primitive  conditions  now  prevailing  in  pres- 
ent day  Alaska,  we  find  packs  of  Eskimo  dogs  dash- 
ing along  the  shores  of  its  rapid  streams  and  towing 
the  native  canoes,  against  the  swift  currents  of  the 
rivers.  No  one,  however,  has  presumed  to  assert 
the  claim  that  this  practice  dedicated  those  shores  to 
pleasure  strolling  and  other  public  uses  in  defiance 
of  Government  Grants. 

The  right  of  free  passage  along  the  shore  of  Eng- 
lish streams,  between  high  and  low  water  mark,  for 
the  horses  used  in  towing  the  vessels  to  their  ultimate 
landing  places  was  contended  for  by  navigators  in 
early  days  under  the  plea  of  commercial  necessity. 

This  claim  so  made  by  the  mariners,  was  contested 
by  the  land  owners.  The  necessity  of  the  seamen 
was  the  basis  of  a  plea  which  was  challenged  from 
the  view  point  of  injury  to  the  owners  of  the  uplands. 
The  right  was  judicially  accorded  as  a  temporary 
privilege  in  some  cases  and  refused  in  others.  On 
occasions  the  Courts  permitted  the  necessitous  tres- 
pass on  one  shore  of  a  stream  while  it  denied  the 
right  on  the  opposite  shore  of  the  same  stream.  In 
certain  cases  the  mariners  were  allowed  by  the  Eng- 
lish Courts  to  travel  a  distance  along  one  shore,  then 
compelled  to  halt  their  vessels  and  transfer  their 
teams  to  the  opposite  bank,  such  transfer  causing  con- 
siderable loss  of  time,  expense  and  labor,  to  the 
master  of  the  ship.  This  was  ordered  done  that  the 
least  possible  injury  from  trespass,  should  occur  upon 
land  situated  on  the  banks  of  the  stream.  In  one 
case,  decided  by  the  King's  bench,  it  was  observed 


120         ENGLISH  CROWN  GRANTS 

that  such  passage  along  certain  banks  of  the  Thames 
River,  between  the  sea  and  London  on  which  vast 
and  valuable  estates  had  been  developed,  was  not  to 
be  entertained  by  the  Court.  The  Court  would  not 
permit  substantial  injury  to  the  proprietors  of  the 
shore. 

In  that  instance,  to  have  permitted  such  passage 
along  the  shore  above  high  water  mark  would  have 
greatly  injured  cultivated  lands,  improved  lawns  and 
beautiful  gardens.  Such  travel  along  the  Thames  be- 
low low  water  mark  was  impracticable  while  the  land 
between  high  and  low  water  mark  along  the  river  was 
then  Crown  land.  In  general,  however,  the  land 
between  high  and  low  water  mark,  was  not  adapted 
for  agricultural  purposes  nor  for  any  cultivatable  use. 

This  ribbon  of  land  between  high  and  low  water 
mark  was  owned  by  the  Crown.  Burden  bearing 
animals  in  case  of  necessity  could  travel  it,  without 
making  it  a  public  highway.  Humans,  in  case  of 
need,  could  traverse  it,  though  its  sands  were  wet 
and  its  soil  heavy.  It  was  not  adapted  for  a  public 
highway  for  travel,  excepting  under  the  pressure  of  a 
special  and  peculiar  emergency. 

No  flight  of  imagination  in  those  practical  times 
pictured  it  as  a  pleasure  promenade.  It  was  the  pro- 
pelling power  of  a  great  need  and  not  the  allurements 
of  pleasure  that  gave  force  and  effect  to  the  doctrine 
of  temporary  use,  by  the  public,  of  a  strip  of  land, 
the  title  to  which  was  vested  in  the  Crown.  From 
this  state  of  facts  was  developed,  in  part,  the  theory 
that  the  land  between  high  and  low  water  mark  was 
held  by  the  Crown  in  some  peculiar  way  in  trust  for 
the  people. 


ENGLISH  CROWN  GRANTS         121 

In  no  event  could  such  temporary  use  constitute 
a  restraint  or  bar  upon  any  improvements  thereof  by 
the  Crown  or  its  Grantee,  which  improvements,  when 
made,  would  make  such  use  impossible. 

English  Courts  denied  to  the  public  the  right  to 
trespass  thereon  for  pleasure  purposes,  and  in  cases 
even  held  as  trespassers  those  who  claimed  and  appro- 
priated it  for  bathing  uses,  and  even  held  that  pushing 
a  baby  carriage  on  a  beach  constituted  a  trespass  upon 
private  rights. 

Public  travel  thereon  was  a  right  developed  from 
a  commercial  necessity  which  is  now  obsolete  and 
rested  upon  a  custom  long  since  terminated.  How- 
ever, some  Courts  in  their  decisions  and  counsel  in 
their  pleadings  appear  to  lean  toward  and  favor  this 
as  a  present  inherent  public  right.  The  ancient  com- 
mercial but  restricted  access  to  and  egress  from  the 
sea,  by  those  who  were  domiciled  upon  the  uplands 
and  who  desired  to  sail  the  deep  was  conceded  and 
provided  for  but  cannot  now  be  successfully  demand- 
ed by  the  public  for  beach  loitering,  sea  bathing  and 
board  walk  strolling. 

Rights  that  have  emanated  from  and  rest  upon  cus- 
toms that  have  subsequently  become  obsolete  are 
deemed  at  law  to  have  become  in  themselves,  void. 
"Necessity  makes  that  lawful,  which  otherwise  is 
unlawful."  (10  Co,  61)  When  necessity  ceases, 
such  rights  created  thereby  and  founded  thereon 
automatically  terminate. 

It  has  been  shown  that  the  so  called  "right  of  the 
public"  to  move  along  the  shore  of  navigable  waters 
is  based  upon  an  obsolete  commercial  necessity,  which 
In  the  past  could  only  be  exercised  by  the  public  when 


122         ENGLISH  CROWN  GRANTS 

and  where  that  commercial  necessity  existed.  "Rea- 
son is  the  soul  of  law,  the  reason  of  the  law  being 
changed  the  law  is  also  changed."     (Leg.  Max.) 

The  public  could  exercise  the  right  on  Crown  lands 
below  high  water  mark,  but  only  so  as  not  to  inter- 
fere with  or  trespass  on  the  rights  of  the  true  owner 
of  the  uplands  above  that  mark.  It  was  impractic- 
able for  the  public  to  exercise  such  right  of  travel 
below  low  water  mark.  It  was,  however,  by  Royal 
clemency  and  favor  that  the  public  use  of  such  Crown 
land  was  permitted  and  not  by  inherent  right  of  the 
people  thereto.  The  many  Crown  Grants  of  Ferry 
privileges,  in  the  Province  of  New  York,  and 
especially  on  the  Hudson  River  show  the  arbitrary 
exercise  of  Royal  authority  over  shore  fronts  and 
beaches,  giving  exclusive  rights  Hy  Grants  thereto 
excluding  the  public  therefrom  in  utter  disregard  of 
the  upland  owners.  These  Grants  covered  in  in- 
stances many  miles  of  shore  fronting  many  upland 
owners  and  in  total  disregard  thereof. 

This  exercise  of  authority  by  the  Crown  was  with- 
out any  confirmation  by  the  Provincial  Assembly,  it 
being  well  understood  and  admitted  that  it  was  an 
indisputable  prerogative  of  the  Crown.  The  present 
ferry  between  Newburg  and  Fishkill-on-the-Hudson 
is  operated  under  such  a  Royal  Grant. 

The  English  Courts  denied  to  the  public  the  right 
of  free  passage  along  the  Crown's  shore  front  where 
commercial  needs  did  not  exist.  Nothing  could  be 
erected  by  the  public  upon  this  strip  of  land,  nor 
could  any  obstruction  be  placed  upon  it  by  the  public 
in  the  exercise  of  any  such  limited  and  exceptional 
rights  as  hereinbefore  described. 


ENGLISH  CROWN  GRANTS         123 

The  King  had  the  right  to  condemn  such  obstruc- 
tions if  erected,  as  perprestures,  and  to  seize  and  de- 
stroy the  same  or  he  might  retain  and  operate  the 
same  as  his  own  property,  provided  they  did  not 
interfere  with  the  public  rights  of  commerce  on  the 
sea. 

Hence  the  King's  Bench  sustained  the  validity  of 
the  Crown  Grants  to  shore  fronts  and  the  punishment 
of  those  attempting  to  use  without  a  Grant  the  land 
between  high  and  low  water  mark  for  bathing  pur- 
poses. The  very  nature  and  character  of  this  excep- 
tional and  temporary  right  of  passage  along  the 
shore  between  high  and  low  water  mark  explains  its 
intent. 

"The  intent  of  the  lawmakers  is  the  essence 
"of  the  law."     (Lex.  Max.) 

The  right  of  the  public  to  use  the  foreshore  in 
England,  was  and  is,  very  restricted,  as  is  shown  in 
the  following  decisions: 

"The  public's  common  law  right  with  respect 
"to  the  sea,  independently  of  usage,  are  rights 
"upon  the  water  not  upon  the  land;  of  passage 
"and  fishing  on  the  sea  and  on  the  sea  shore, 
"when  covered  with  water,  and  although  as 
"incident  thereto,  the  public  must  have  the  means 
"of  getting  to  and  upon  the  water  for  those  pur- 
"poses,  yet  it  appears  that  by  and  from  such 
"places  only  as  necessity  or  usage  have  approp- 
"riated  to  those  places,  and  not  a  general  right  of 
"lading  or  unlading,  landing  or  embarking 
"where  they  pleased  upon  the  seashore  or  the 


124         ENGLISH  CROWN  GRANTS 

"land  adjoining  thereto  except  in  case  of  peril 
"or  necessity." 

(Blundell  vs.  Catterall  5B  and  Aid,  268.) 
Lord's  Court  of  England. 

"In  this  country  the  right  of  the  public  to  use 
"the  foreshore  when  not  granted  in  fee  is  much 
"more  liberal." 

(State  of  New  York,  Steeple  Chase  Co.,  N. 
Y.,  July  nth,  19 16.) 

"The  English  case  of  Blundell  vs.  Catterail 
"(5B  and  Aid  268)  settled  that  there  was  no 
"common  right  of  bathing  in  front  of  a  shore, 
"where  the  shore  the  locus  in  quo  had  been 
"actually  granted  to  the  Lord  of  the  Manor. 
"Justice  Holrayd  states  this  to  be  the  question." 
(Estates  and  Rights  of  the  Corp.  N.  Y., 
B.  III.) 

The  pleasure  seeking  public  may  not  exercise  a 
right  that  overrides  private  vested  interests,  where 
they  demand  for  pleasure  a  privilege  extended  under 
the  pressure  of  a  commercial  necessity.  They  cannot 
expand  the  doctrine  of  necessitous  public  use  of 
Crown  land,  accorded  by  Royal  clemency  and  favor, 
into  a  right  to  trespass  upon  private  land  along  a 
pathway  that  by  no  Inference  or  Implication  can  be 
presumed  to  be  "a  highway  of  pleasure." 

The  strand  of  land  above  high  water  mark  Is  the 
bank  on  and  in  which  it  Is  admitted  the  public  has  no 
common  right.  The  shore  or  beach  Is  the  narrow 
strip  of  land  between  high  and  low  water  mark  which 
is  always,  excepting  for  the  moment  of  ebb  tide,  par- 


ENGLISH  CROWN  GRANTS         125 

tially  or  entirely  flooded.  It  is  always  wet,  disagree- 
able, and  liable  to  be  overflowed  by  the  surf,  dis- 
qualifying it  for  pleasure  purposes,  unless  artificially 
reclaimed.  This  reclamation  may  only  be  done  by 
the  Crown,  or  by  the  State,  or,  if  such  shore  has 
been  previously  granted  then  by  such  grantee. 

With  the  removal  of  the  original  commercial  nec- 
essity for  the  exercise  of  the  right  of  travel  along  the 
shore  by  a  limited  portion  of  the  public  on  excep- 
tional occasions,  the  demand  by  the  general  public  for 
the  exercise  of  the  same  right,  "when  on  pleasure 
bent,"  is  untenable. 

In  brief,  the  rights  claimed  at  the  present  time  by 
the  people  to  the  land  between  high  and  low  water 
mark  may  be  explained  as  follows : 

The  Crown  originally  owned  (a)  ;  the  upland 
(b)  the  land  between  high  and  low  water  mark; 
and  (c)  the  land  below  low  water  mark.  It 
alone  had  power  to  grant  any  portion  of  the 
three  mentioned  classes  of  land.  The  Crown 
did  frequently  and  unhesitatingly  exercise  such 
right. 

When  the  King  granted  upland  extending  to 
tide  water  the  Grant  was  limited  to  high  water 
mark,  unless  by  the  language  of  the  grant  it 
specifically  included  land  between  high  and  low 
water  mark  or  submerged  lands.  When 
by  some  great  volcanic  upheaval  the  level  of 
the  sea  bottom  changed  and  from  large 
areas  of  submerged  lands,  water  receded, 
then  the  ungranted  land  theretofore  under  water 


126         ENGLISH  CROWN  GRANTS 

became  upland,  the  title  thereto  still  remaining 
in  the  Sovereign. 

The  right  of  the  people,  which  were  rights 
of  commerce  and  travel  on  the  water,  then  went 
to  sea  with  the  water.  No  special  popular 
rights  then  adhered  to  or  attached  to  the  land 
so  released  from  the  water.  It  was  Crown  land 
whether  submerged  or  upland  and  the  people's 
rights  pertained  to  the  use  of  the  water  alone. 

There  were  no  mysterious  popular  rights  ad- 
hering to  the  shore  fronts,  or  to  the  lands  under 
water.  "Ignorance  doth  cloak  our  thoughts  in 
Mystery  and  is  the  mother  of  ghosts  and  phan- 
toms." 

The  popular  right  of  access  to  the  sea,  "the 
highway  of  commerce,"  is  substantially  the  same 
right  which  goes  with  the  sale  of  a  land-locked 
lot.  A  reasonable  and  proper  way,  lane  or  road 
must  be  provided  by  the  Grantor  to  the  Grantee, 
so  that  the  owner  of  the  land-locked  plot  of 
land  may  have  ingress  and  egress  between  it  and 
"the  King's  highway,"  or  the  public  highway  on 
land. 

The  owner  of  such  a  plot  must  accept  and  be 
satisfied  with  such  a  reasonable  and  proper  route 
as  may  be  designated  by  the  surrounding  prop- 
erty holders  or  holder.  The  two  cases  are 
parallel. 

A  gradual  accretion  or  erosion  of  a  shore 
front  continuing  imperceptibly  through  a  period 
of  years,  likewise  shifts  with  it  the  title  to  the 
land  between  high  and  low  water  mark.  This 
is    not    true,    however,    when    a    sudden,    vio- 


ENGLISH  CROWN  GRANTS         127 

lent  and  radical  change  occurs.  In  the  latter 
event  the  boundaries  are  readily  determined  and 
easily  marked. 

In  the  case  of  Staten  Island,  every  Crown  Grant 
now  legally  accepted  ivas  approved  by  the  Crown  and 
the  Council.  Staten  Island  passed  completely  into 
or  under  private  ownerships,  "to  the  bounds  and 
limits  of  Richmond  County."  The  Grants  issued  by 
the  Crown  and  failing  of  confirmation  by  the  Coun- 
cil are  admittedly  void.  The  Crown  represented 
imperialism,  the  Council  consisted  of  the  Crown's 
advisors.  The  Crown  consented  to  each  Grant  sub- 
ject to  its  approval  by  its  appointed  council. 

When  the  final  Grant  of  land  on  Staten  Island  was 
made  to  Lancaster  Symes  in  1708,  not  one  square 
foot  in  Richmond  County  remained  vested  in  the 
English  Crown.  Consequently  the  State  of  New 
York  upon  its  organization  did  not  succeed  to  the 
ownership  of  any  land  thereon.  Hence  the  candid 
admission  by  the  State  of  New  York  (in  1873)  that 
the  State  was  not  the  owner  of  any  land  on  Staten 
Island. 

"So  great,  moreover,  is  the  regard  of  the  law 
"for  private  property,  that  it  will  not  authorize 
"the  least  violation  of  it;  no,  not  even  for  the 
"general  good  of  the  whole  community. 

"If  a  new  road  for  instance  were  to  be  made 
"through  the  grounds  of  a  private  person,  it 
"might  perhaps  be  extensively  beneficial  to  the 
"public;  but  the  law  permits  no  man,  or  set  of 
"men,  to  do  this  without  the  consent  of  the 
"owner  of  the  land. 


128         ENGLISH  CROWN  GRANTS 


"In  vain  may  it  be  urged  that  the  good  of  the 
individual  ought  to  yield  to  that  of  the  com- 
munity; for  it  would  be  dangerous  to  allow 
any  private  man  or  even  any  public  tribunal  to 
be  the  judge  of  the  common  good,  and  to 
decide  whether  it  be  expedient  or  no. 

"Besides,  the  public  good  is  in  nothing  more 
essentially  interested  than  in  the  protection  of 
every  individual's  private  rights,  as  modelled 
by  the  municipal  law.  In  this  and  similar 
cases  the  Legislature  alone  can  and  indeed  fre- 
quently does  interpose  and  compel  the  indi- 
vidual to  acquiesce." 

"But  how  does  it  interpose  and  compel?  Not 
by  absolutely  stripping  the  subject  of  his  pro- 
perty in  an  arbitrary  manner;  but  by  giving 
him  a  full  indemnification  and  equivalent  for 
the  injury  thereby  sustained."  (Blackstone, 
Bk.  I,  Chap.  I,  p.  139.) 


UNDER    SEA    LANDS 

AND 

CROWN    GRANTS. 

There  can  be  no  ambiguity  or  legal  uncertainty  as 
to  what  constituted  originally  the  boundaries  of  Staten 
Island  at  the  time  the  English  Crown  Grants  were 
made  to  lands  thereon. 

We  find  in  the  Colonial  Law  of  New  York  (VoL 
I,  1664  to  17 19)  that  on  November  ist,  1683,  the 
Colonial  Assembly  of  the  Province  of  New  York 
passed  "An  act  to  divide  this  province  and  depend- 
encies into  shires  and  counties." 

In  that  Act  it  was  provided  that  "The  County  of 
Richmond  to  contain  all  of  Staten  Island,  Shutters 
Island,  and  the  Islands  of  Meadows  on  the  west  side 
thereof." 

It  should  here  be  observed  that  what  is  now  some- 
times called  "The  Island  of  Meadows,"  situated  at 
the  mouth  of  Fresh  Kills  on  Staten  Island  was  not 
one  of  the  "Islands  of  Meadows"  referred  to  in  the 
above  statute.  The  present  Island  of  Meadows  was 
not  an  island,  prior  to  the  American  Revolution,  as 
Is  clearly  shown  on  the  official  survey  by  the  officers 
of  the  English  Crown. 

On  October  ist,  1683,  as  shown  In  Volume  I  of 
New  York  Colonial  Laws,  the  Colonial  Assembly 
again  passed  an  act  providing  that  the  County  of 

129 


I30         ENGLISH  CROWN  GRANTS 

Richmond  should  contain  all  of  Staten  Island,  Shut- 
ters Island  and  the  Islands  of  Meadows  on  the  west 
side  thereof.  In  other  words,  Richmond  County  was 
to  include  no  more  and  no  less  than  the  above. 

The  Act  does  not  read  that  Richmond  County  shall 
be  composed  as  aforesaid,  plus  additional  land  be- 
longing to  the  Crown  of  England,  extending  tinder 
the  water  about  Staten  Island  but  not  belonging 
thereto.  It  distinctly  and  clearly  states  that  the 
County  shall  be  composed  of  the  Islands  referred  to. 
Immediately  upon  the  passage  of  the  said  Act  the 
boundaries  of  Staten  Island  were  defined  and 
mapped,  as  is  clearly  shown  on  the  early  maps  of  the 
County.  These  boundaries  appear  in  the  records  of 
the  contention  between  the  State  of  New  York  and 
the  State  of  New  Jersey  over  the  boundaries  between 
the  two  States.  This  contention  was  inherited  by  the 
States  from  the  Colonies  of  New  York  and  New 
Jersey. 

The  County  of  Richmond  only  acquired  political 
jurisdiction  over  and  no  proprietorship  in  the  lands 
referred  to.  The  statutes,  however,  together  with 
the  Crown's  Surveyor,  clearly  show  what  lands  were 
included  in  Staten  Island,  This  conclusion  is  in  strict 
harmony  with  the  language  of  the  final  Grant  to 
Lancaster  Symes,  which  included : 

"All  the  before  menconed  Pieces  and  parcells 
of  vacant  &  unappropriated  Land  and  Premises 
"and  all  and  singular  the  Heriditaments  and 
"appurtenances  thereunto  belonging  within  the 
"bounds  and  limitts  above  in  these  Presents 
"menconed  and  expressed  together  with  all  and 


ENGLISH  CROWN  GRANTS         131 

"singular,  the  woods,  underwoods,  trees,  timber, 
"ffeedings,  meadows,  mashes,  swamps,  pooles, 
"ponds,  waters,  watercourses,  rivers,  rivulets, 
"runs  and  streams  of  water,  brooks,  ffishing  and 
"ffowling,  hunting,  hawking,  mines  and  miner- 
"alls,  standing,  growing,  lyeing,  or  being  or  to 
"be  had,  used  or  enjoyed  in  them  the  bounds 
"and  limitts  aforesaid  and  all  other  profitts, 
"Benefitts,  Advantages,  Hereditaments  and  ap- 
"purtenances  whatsoever  unto  the  sd  pieces  and 
"parcells  of  lands  and  premises  belonging  or  in 
"anywise  appurtyying  except  and  always  re- 
"served  out  of  this  our  present  Grant  all  gold 
"and  silver  Mines." 


The  Grant  to  Lancaster  Symes  was  made  after  the 
organization  of  Richmond  County  and  its  terms  com- 
prehended all  the  vacant  and  unappropriated  land  in 
"the  County  of  Richmond,  which  comprehends  the 
whole  of  Staten  Island." 

The  above  deduction,  that  Staten  Island  lands  ex- 
tended to  the  bounds  and  limits  of  Richmond  County 
is  in  full  and  complete  accord  with  Blackstone's 
authoritative  statement : 

"A  stream  or  watercourse  is  considered  as 
"part  of  the  land."     (Blackstone.) 

"For  land,"  says  Edward  Coke,  "compre- 
"hendeth  in  its  legal  signification  any  ground, 
"soil  or  earth  whatsoever;  as  arable  meadows, 
"pastures,  woods,  moors,  waters,  marshes, 
"furzes  and  heath;  it  legally  includeth  also  all 
"castles,  houses  and  other  buildings,  for  they 


132        ENGLISH  CROWN  GRANTS 

"consist,"  said  he,  "of  two  things:  land  which 
"is  the  foundation  and  structure  thereupon,  so 
"that  if  I  convey  the  land  or  ground,  the  struc- 
"ture  or  building  passeth  therewith.  It  is  ob- 
"servable  that  water  is  here  mentioned  as  a  spe- 
"cies  of  land,  which  may  seem  a  kind  of  sole- 
!  "cism;  but  such  is  the  language  of  the  law;  and 
"therefore  I  cannot  bring  an  action  to  recover 
"possession  of  a  pool  or  other  piece  of  water,  by 
"the  name  of  water  only;  either  by  calculating 
"its  capacity,  as,  for  so  many  cubic  yards;  or  by 
"superficial  measure,  for  20  acres  of  water;  or 
"by  general  description,  as  for  a  pond,  a  water 
"course,  or  a  rivulet ;  but  I  must  bring  my  action 
"for  the  land  that  lies  at  the  bottom  and  must 
"call  it  20  acres  of  land  covered  with  water:  for 
"water  is  a  movable,  wandering  thing,  and  must 
"of  necessity  continue  common  by  the  law  of 
"nature,  so  that  I  can  only  have  a  temporary, 
"transcient,  usufructuary,  property  therein: 
"wherefore,  if  a  body  of  water  run  out  of  the 
"pond  into  another  man's,  I  have  no  right  to 
"reclaim  it,  but  the  land,  which  that  water  cov- 
"ers,  is  permanent,  fixed  and  immovable:  and 
"therefore  in  this  way  I  may  have  a  certain  sub- 
"stantial  property  of  which  the  law  will  take 
"notice  and  not  of  the  other."  (Blackstone, 
Book  2,  Chap.  2:  18.) 

"From  the  earliest  times  in  England,  the  law 
"has  vested  the  title  to  and  control  over  the 
"navigable  waters  therein  in  the  Crown  and  Par- 
"liament.  A  distinction  was  taken  between  the 
"mere  ownership  of  the  soil  under  the  water  and 


ENGLISH  CROWN  GRANTS         133 

"the  control  over  it  for  public  purposes.  The 
"ownership  of  the  soil  is  analogous  to  the  own- 
"ership  of  dry  land  and  was  regarded  as  jus 
''privatum  and  was  vested  in  the  Crown ;  but  the 
"right  to  use  and  control  both  the  land  and  the 
"water  was  deemed  a  jus  publicum  and  was 
"vested  in  Parliament.  The  Crown  could  con- 
"vey  the  land  under  water  so  as  to  give  private 
"rights  therein,  but  the  dominion  and  control 
"over  the  waters  in  the  interests  of  commerce 
"and  navigation  for  the  benefit  of  all  the  sub- 
"jects  of  the  kingdom  could  be  exercised  only  by 
"Parliament."  (Commonwealth  vs.  Alger  7 
Cush.  53.)  (People  vs.  N.  Y.  Staten  Island 
Ferry  Co.  68  N.  Y.  71.) 

"As  in  England,  the  Crown  and  Parliament 
"can,  without  limitation,  convey  land  under  pub- 
"lic  waters."  (State  of  N.  Y.  vs.  Steeplechase 
Park  Co.,  N.  Y.,  July  11,  19 16.) 

In  17 1 8,  Lord  Cornbury  granted  to  the  corpora- 
tion of  the  City  of  New  York, 

"All  that  aforesaid  vacant  and  unappropriated 
"ground  lying  and  being  on  the  said  Nassau 
"Island.''     (Pg.  161,  England  162.) 

This  Grant  was  confirmed  by  the  Montgomeric 
Charter  of  1730.  The  language  of  this  conveyance 
is  significant  as  an  illustration  of  the  principle  that 
there  is  no  distinction  in  fact  to  be  drawn  between 
land  covered  by  water  and  land  above  water.  The 
grant  of  the  whole  bed  of  the  East  River  for  a  con- 


134         ENGLISH  CROWN  GRANTS 

siderable  distance  between  the  Manhattan  and  Brook- 
lyn shores  was  made  without  once  referring  to  the 
land  as  being  under  water. 

These  grants  have  been  upheld  by  the  Courts. 

As  a  legal  proposition  there  is  no  difference  be- 
tween land  under  water  and  land  under  air. 

The  air  is  transitory.  "We  know  not  whence  it 
cometh  or  whither  it  goeth."  It  is  on  the  land  now, 
but  in  a  moment  it  has  fled  and  other  atmosphere 
takes  its  place.  No  deed  can  bind  it,  no  property 
rights  attach  to  it. 

The  water  Is  migratory.  The  winds  chase  it,  grav- 
ity dominates  It  and  the  tides  composed  of  water 
sweep  on  In  never  ending  restlessness.  It  is  on  the 
land  for  a  few  moments  of  time,  then  away  it  flows, 
while  other  and  strange  waters  take  its  place,  but  only 
for  a  hand  breath  of  time,  when  they  too  give  place 
to  other  floods. 

Birds  fly  In  the  air  and  fish  swim  in  the  sea.  Boats 
navigate  the  one  while  airplanes  navigate  the  other. 
The  hydro-airplane  sails  on  them  both. 

Docks  extend  out  into  the  one  while  dwellings  and 
skyscrapers  pierce  the  other. 

The  laws  of  navigation  govern  them  both.  The 
State  dictates  the  length  and  construction  of  the  docks 
while  at  the  same  time  It  has  full  power  to  limit  the 
helghth  of  the  buildings  on  land  and  the  construction 
thereof. 

The  public  may  sail  the  seas  and  navigate  the  air 
though  the  land  owner  holds  title  to  the  land  under 
both.  This  Is  pursuant  to  the  public's  right  of  travel 
and  commerce. 

The  land  under  each  Is  fixed,  stationary,  and  is  the 


ENGLISH  CROWN  GRANTS         135 

object  of  proprietorship.    The  elements  represented 
in  the  water  and  the  air  cannot  be. 

Hence  the  law  ignores  both  air  and  water  in  legal- 
izing a  transfer  of  land  and  looks  to  land  alone  as  the 
object  of  proprietorship. 

"A  grant  of  land  described  by  metes  and 
"bounds  carries  with  it  lands  under  water  within 
"the  bounds."  (Condert  vs.  Underbill,  95 
N.  Y.  S.  134,  107;  App.  Div.  335.) 

Therefore,  Colonial  Legislators  did  not  err  when 
they  declared  that  Sand  Bay  was  "on  Staten  Island," 
and  again  when  they  declared  that  it  was  "on  the 
easter  most  part  of  Staten  Island."  Not  East  of,  but 
"on  Staten  Island." 

The  final  Crown  Grant  to  Lancaster  Symes  cov- 
ered by  its  description  all  vacant  and  unappropriated 
lands  "to  the  bounds  and  limits  of  Richmond 
County."  It  did  not  specify  land  under  air  or  land 
under  water,  but  it  did  set  the  limits  and  bounds.  It 
was  a  correct  legal  description  based  upon  exact  offi- 
cial surveys.  To  make  it  definite  and  certain  it  speci- 
fied rivers,  runs  and  streams  of  water,  with  fishing 
rights. 


FISH,    OYSTERS 

AND 

CROWN    GRANTS. 

It  is  fully  and  freely  admitted  by  all  authorities 
that  the  title  to  all  lands  under  water  originally  vested 
and  ultimately  vest  in  the  Crown. 

The  presence  of  water  on  land  has  no  bearing 
whatever  upon  the  sovereign's  right  to  grant  the  land. 

History  shows  that  the  American  Indians  made 
like  claims  to  sovereignty  over  and  title  in  submerged 
land.  The  Indians  raised  a  limited  supply  of  maize 
or  Indian  corn,  which  was  to  him  an  important  article 
of  food,  but  his  crops,  cultivated  in  a  crude  fashion, 
frequently  failed  or  were  limited  far  below  his  heeds. 
The  Indian  looked  to  the  forest  for  game  and  pur- 
sued the  chase ;  but  the  winters  in  colonial  times,  far 
more  severe  than  at  present,  oft  times  left  him  shorn 
of  food  from  the  hunt. 

The  sea,  however,  never  betrayed  him;  summer 
and  winter  and  year  succeeding  year,  it  furnished  him 
an  unfailing  supply  of  fish,  while  the  oyster  beds,  in 
close  proximity  to  his  settlements  on  Staten  Island, 
were  an  unceasing  source  and  furnished  an  abundant 
supply  of  food  oysters. 

This  is  clearly  and  remarkably  shown  in  a  very 
substantial  way  in  the  histories  of  Staten  Island, 
which  refer  to  the  period  of  colonization.    They  tell 

136 


ENGLISH  CROWN  GRANTS         137 

us  that  adjacent  to  and  over  against  the  sites  of  the 
Indian  villages  on  Staten  Island  great  heaps  of  oyster 
and  clam  shells  were  found  by  the  early  settlers. 
These  piles  of  shells  were  so  extensive  that  the  early 
settlers  burned  them  for  lime  for  use  in  the  construc- 
tion of  their  houses,  and  generation  after  generation 
resorted  to  these  deposits  of  shells  as  a  source  of  sup- 
ply for  furnishing  the  much  needed  lime  for  Staten 
Island  lands,  used  for  agricultural  purposes. 

The  lands  under  water,  adjacent  to  the  shores  of 
Staten  Island,  were  held  by  the  native  Indians. 

These  lands  constituted  their  most  important 
source  of  food  supply,  and  would  have  been  fought 
for  against  all  trespassers  and  invaders. 

To  the  Staten  Island  Indians,  the  oyster  beds  of 
Staten  Island  were  as  important  as  are  the  wheat 
fields  of  Minnesota  and  the  Dakotas  to  the  people 
of  the  United  States. 

The  Indians  had  the  same  conception  of  the  own- 
ership of  uplands,  shores  and  lands  under  water  as 
was  entertained  by  European  sovereigns.  It  was  the 
natural  development  of  that  dormant  but  innate  con- 
ception of  the  human  mind  hereinbefore  referred  to, 
that  all  titles  descend  from  supreme  sovereignty  and 
that  every  good  thing  is  a  gift  from  the  Great  and 
Good  Spirit. 

The  South  American  Indians,  under  the  sway  of 
the  Incas,  looked  upon  their  sovereign  as  represent- 
ing a  dynasty  which  descended  from  the  sun,  or  the 
supreme  God  of  the  heavens.  They  "out-Heroded 
Herod"  in  exalting  the  theory  of  the  divine  right  of 
kings  into  a  divinity  of  kingship.  The  Indians  on  the 
coast  of  North  America,  ruling  in  their  several  tribes 


138         ENGLISH  CROWN  GRANTS 

the  districts  about  New  York,  looked  to  their  sove-: 
reigns  or  chiefs  and  to  their  councils  as  representing 
the  title  to  lands  occupied  by  the  tribes. 

The  Indians  of  Staten  Island,  in  1657,  in  a  deed 
dated  July  loth  of  that  year,  certified: 

"We,  the  undersigned  natives  of  North 
"America,  hereditary  owners  of  Staten  Island, 
"certify  and  declare."  (Col.  Hist.  N.  Y.,  Vol. 
14,  p.  393-) 

In  1658,  Wyandance,  the  famous,  peaceable  and 
much  beloved  Chief  of  the  Montauk  Indians,  then 
settled  on  the  east  end  of  Long  Island,  made  a  Grant 
to  Lyon  Gardiner  of  the  right  of  herbage  on  a  large 
tract  of  land  adjoining  Southampton.  The  assent  of 
certain  other  chiefs  or  sachems  was  secured  to  this 
Grant. 

The  chiefs,  however,  reserved  in  that  Grant  "the 
whales  that  shall  be  cast  up." 

In  the  year  following,  the  same  sachem,  Wyan- 
dance, granted  to  the  said  Gardiner  "All  whales  that 
might  come  ashore,"  on  a  long  extent  of  sea  front. 

An  interesting  fact  in  connection  with  this  Grant 
by  the  Indians  to  Gardiner  is  that  all  whales,  with  an 
occasional  exception,  when  stranded  or  cast  up  by  the 
sea,  are  stranded  on  the  outer  bar  of  sand  which 
forms  some  distance  from  the  shore  or  on  land  below 
low  water  mark,  and  on  what  is  known  as  "land  un- 
der the  deep  sea,"  or  submerged  lands. 

"Royal  fish  consist  of  whale  and  sturgeon,  to  which 
the  king,  or  those  who  have  a  royal  franchise  are  en- 
titled, when  either  thrown  on  the  shore  or  caught 
near  the  coast."      (Cruise's  Digest  of  the  Laws  of 


ENGLISH  CROWN  GRANTS         139 

England  respecting  Real  Property,  1808,  Vol.  2, 
Title  27.) 

In  this,  as  in  many  other  respects,  there  was  per- 
fect harmony  between  English  and  American-Indian 
Common  Law. 

At  a  meeting  of  the  Legislative  Council  of  New 
York  held  at  Fort  Henry,  March  23rd,  1698,  great 
indignation  was  there  expressed  over  the  fact  that 
Richard  Floyd,  Jr.,  had  dared  to  cut  up  and  carry 
away  a  dead  whale  that  had  drifted  ashore  on  Long 
Island.  The  Council  declared  it  "a  high  contempt 
of  his  Majestie's  authority  and  derogatory  of  his 
Majestie's  right."  The  Council  ordered  that  the 
whale  be  seized  and  Floyd  arrested  and  prosecuted. 
It  was  a  bad  case  of  lese  majestie. 

The  minutes  of  the  Council  for  many  sessions 
thereafter  show  deep  resentment  over  this  poaching 
upon  the  Royal  fishing  preserves. 

A  descendant  of  this  man  Floyd  "got  square" 
with  the  English  Crown,  by  adding  his  signature  to 
the  historic  "Declaration  of  Independence,"  in  1776. 

In  1726  the  Legislative  Council  of  New  York  ap- 
proved an  act  to  grant  one  De  Langloisere  "the  sole 
fishing  of  porpoises  in  the  Province  of  New  York 
during  the  term  of  Ten  years."  Porpoises  never 
invaded  the  Harbor  of  New  York,  though  Robbins 
(Robyns)  reef  was  named  after  the  seal  that  fre- 
quented it  in  colonial  days. 

The  Fishing  Rights  granted  to  Lancaster  Symes 
(1708)  were  valid  under  English  Common  Law  and 
consonant  with  the  custom  of  the  Crown  in  granting 
such  rights. 

In  Colonial  days  whales  were  exceedingly  plentiful 


I40         ENGLISH  CROWN  GRANTS 

along  the  New  England  and  Long  Island  shores,  as 
is  dearly  shown  in  the  autobiography  of  Rev.  Lyman 
Beecher,  D.D.,  pastor  of  the  Presbyterian  Church 
of  Easthampton,  Long  Island. 

It  frequently  occurred  that  whales  pursued  their 
food  close  in  to  shore,  and  at  high  tide  would  pass 
in  over  the  outer  bar,  which  bar  always  forms  on  that 
coast  beyond  where  the  waves  break  on  the  shore. 
The  whales  remaining  until  low  tide,  would  fre- 
quently become  stranded  in  the  shallow  water  on  the 
outer  bar,  when  seeking  to  find  their  way  out  into 
the  deep  sea.  Thereupon  the  natives  on  shore  would 
proceed  in  their  canoes  to  dispatch  them  and  convert 
them  into  commercial  products. 

In  fact,  whales  captured  "along  shore"  by  fisher- 
men are  generally  dispatched  and  cut  up  in  the  water, 
frequently  below  low  water  mark,  because  of  their 
weight  and  the  depth  of  water  necessary  for  them  in 
swimming  or  floating. 

With  this  state  of  facts  clearly  before  us,  we  dis- 
cover that  the  English  recognized  in  the  Indians  their 
rights  to  the  lands  under  water  below  low  water 
mark.  The  settlers  seeking  to  acquire  from  the  In- 
dians this  then  most  fertile  source  of  income  and  pro- 
fit on  the  Atlantic  shore,  to-wit,  the  whale  fishery, 
applied  to  the  Indian  Chiefs  for  and  received  from 
them  Grants  to  operate  an  industry  which  made  neces- 
sary the  occupancy  and  use  of  lands  under  water  be- 
low low  water  mark. 

There  can  be  no  doubt  of  the  fact  that  the  Eng- 
lish recognized  the  Indians'  claim  of  title  to  such 
land.    The  acceptance  of  such  Grants  by  the  settlers, 


ENGLISH  CROWN  GRANTS         141 

and  the  English  authorities,  bound  them  to  such  a 
legal  construction. 

In  one  of  the  foregoing  mentioned  Grants  made  by 
the  Indians  to  the  settlers  (E.  H.  R.,  Vol.  i,  p.  148) 
a  limitation  is  set  by  the  use  of  a  single  word  in  the 
said  Grant,  to  wit,  "Enaughquamuck,"  which,  trans- 
lated by  the  Algonkinist  authority,  William  Wallace 
Tooker,  means  "as  far  as  the  fishing  place  goes."  It 
is  a  reasonable  deduction  that  as  fishing  places  are 
not  on  dry  land,  they  must  extend  out  and  involve 
the  land  under  water.  Here  is  a  definite  recognition 
of  title  to  land  under  water  claimed  as  belonging  to 
and  granted  by  the  Indians.  Further  evidence.  In 
support  of  the  Indians'  claim  to  the  lands  under 
water  at  their  fishing  places  and  elsewhere  is  the  ever 
recurring  expression  in  histories  of  colonial  times, 
"the  fishing  grounds  of  the  Indians."  It  Is  a  per- 
tinent Inquiry,  Why  did  the  natives,  the  colonists,  and 
the  colonial  and  imperial  authorities  constantly  refer 
to  the  "Indians'  fishing  grounds"  If  they  only  meant 
the  waters  In  which  they  fished?  As  conclusive 
proof  of  the  Indians'  claim,  and  maintenance  of  title, 
to  lands  under  water  below  low  water  mark,  we  cite 
the  case  of  Fisher's  Island,  situated  at  the  Eastern 
end  of  Long  Island  Sound,  the  title  to  which  Island, 
and  the  fishing  grounds  surrounding  the  Island,  were 
claimed  and  held  by  the  Rhode  Island  Indians  as 
against  all  comers. 

There  Is  a  small  stream  on  the  eastern  end  of  Long 
Island  by  the  name  of  Wading  River.  Its  Indian 
name  was  "Pauquacumsuck,"  which  signifies  "the 
brook  or  outlet  where  we  wade  for  clams."  This  is 
a  tidal  stream.     It  flows  Into  the  sea  or  sound.     It 


142         ENGLISH  CROWN  GRANTS 

was  planted  by  the  Indians  with  clams.  It  was  a 
source,  and  an  important  one,  of  the  Indians'  food 
supply  and  its  name  appears  in  grants  and  deeds. 

"What  is  planted  in  the  soil  belongs  to  the  soil." 

The  identification  of  the  fishing  grounds  as  an  in- 
tegral part  of  Indian  lands  and  lands  of  the  early 
settlers  is  interestingly  referred  to  in  the  recent  de- 
cision of  the  New  York  Court  of  Appeals,  in  the  case 
of  Lillius  Grace  vs.  Town  of  North  Winsted  (Feb. 
26th,  1916),  in  which  the  Court  recites  the  attrac- 
tion possessed  by  Long  Island  for  settlers,  caused  by 
the  shell  fish  abounding  in  its  tidal  waters  and  which 
belonged  to  and  were  a  part  of  Its  submerged  lands. 

It  also  referred  to  the  Grants  and  to  "the  extrinsic 
facts  as  to  the  situation  of  the  colony."  It  reached 
the  conclusion  that  the  patents  embraced  the  lands 
under  the  bay. 

The  subject  of  Crown  Grants  of  lands  under  water 
is  thoroughly  and  comprehensively  discussed  In  the 
leading  case  of  Rodgers  vs.  Jones  (i  John  237). 
This  case  has  been  uniformly  followed  and  is  recog- 
nized as  controlling  In  New  York  State.  Rodgers  was 
sued  by  one  Jones,  a  surveyor  of  the  Town  of  Oyster 
Bay,  for  the  recovery  of  a  penalty  created  by  the  by- 
laws of  the  Town,  which  declared  "that  no  person 
not  being  an  Inhabitant  of  Oyster  Bay  shall  be  al- 
lowed to  rake  or  take  any  oysters  on  the  creeks  or 
harbors  of  the  Town  of  Oyster  Bay,  under  the  pen- 
alty of  $12.50  for  each  offense." 

The  Town  claimed  title  under  an  English  Crown 
Grant.  The  penalty  was  enforced  by  the  trial  court 
and  the  judgment  was  affirmed  on  an  appeal.  The 
description  contained  In  the  Grant  under  which  the 


ENGLISH  CROWN  GRANTS         143 

Town  of  Oyster  Bay  asserted  its  right  is  in  nowise 
as  comprehensive  as  the  description  contained  in  the 
final  and  inclusive  Grant  made  by  the  English  Crown 
closing  out  the  Crown's  estate  on  Staten  Island  to 
Lancaster  Symes. 

"It  has,  however,  been  strenuously  but  mistakenly 
insisted  that  the  right  of  alienation  by  the  Crown 
was  restricted  by  Magna  Charta  and  other  statutes, 
not  only  so  as  to  prevent  the  King  from  making  a 
Grant  of  a  fishery  in  severalty  but  from  making  any 
absolute  transfer  of  the  soil  under  water." 

"What  may  be  the  law  elsewhere  on  the  strength 
of  reasoning  sustaining  this  view,  it  must  be  regarded 
as  the  law  of  New  York  that  no  such  restraints  were 
imposed  by  the  Magna  Charta  or  otherwise  upon  the 
kingly  power."  (Estates  and  Rights  of  the  Corp. 
of  the  City  of  N.  Y.,  Vol.  i,  p.  223.) 

Fisheries  are  of  three  kinds: 

First,      Several. 
Second,  Free. 
Third,    Common. 

"The  right  of  'several'  fisheries,  as  already  shown, 
is  founded  on  and  annexed  to  the  soil  and  is,  by  rea- 
son of,  and  concommittance  with  the  ownership  of 
the  soil.  When  the  soil  of  a  navigable  river  is 
granted,  the  right  of  'several'  fisheries  therein  be- 
gins." (Words  and  Phrases  Judicially  Defined, 
"Fishery.") 

"The  right  to  fish  and  take  fish  is  not  an  easement; 
it  is  a  right  of  profit  in  lands."  (Wickham  vs. 
Hawker,  7M  7W  73.) 

"A  fishery  is  in  the  river  and  is  not  the  space  be- 


144         ENGLISH  CROWN  GRANTS 

tween  high  and  low  water  mark,  though  the  use  of 
that  space  may  be  necessary  in  the  use  of  it  and  may 
be  included  in  the  term."  (Tinicum  Fishing  Co.  vs. 
Carter,  6i  Pa.  2i,  37.) 

"A  fishing  pool  or  place  is  defined  by  statute  to  be 
from  the  place  or  places  where  the  seins  or  nets  have 
been  usually  thrown  into  the  water  to  the  place  or 
places  where  they  have  been  usually  taken  out." 
(Tinicum  Fishing  Co.  vs.  Carter,  61  Pa.  21,  36.) 

"The  term  'Royal  Fishery'  at  common  law  was 
used  to  designate  the  right  of  fishery  in  a  navigable 
river  in  which  the  sea  ebbed  and  flowed,  and  was  so 
called  because  the  right  was  a  part  of  the  prerogative 
of  the  King."  (Arnold  vs.  Mundy,  6  N.  J.  Law 
(i  Halst)   I,  86.) 

"A  free  fishery  or  exclusive  right  of  fishing  in  a 
public  river  is  a  royal  franchise,  which  is  now  fre- 
quently vested  in  private  persons,  either  by  Grant 
from  the  Crown  or  by  prescription."  (Cruise's  Di- 
gest of  the  Laws  of  England  Respecting  Real  Pro- 
perty (1808),  Vol.  2,  Tit.  27.) 

The  theory  of  English  Common  Law,  elucidated 
by  Blackstone  and  other  authorities,  that  in  the 
granting  of  the  land  and  the  conveyance  of  same,  the 
presence  or  nonpresence  of  water  thereon  is  not 
taken  into  account  is  in  strict  harmony  with  the  de- 
cisions of  the  English  Courts,  contemporaneous  with 
and  subsequent  to  the  Crown  Grants  of  land  on 
Staten  Island  relating  to  fisheries,  as  made  in  1708  to 
Lancaster  Symes. 

On  November  13th,  1799,  the  English  Crown 
brought  an  action  for  the  restoration  of  a  certain  M. 
Harm  an  to  an  office  in  a  company  from  which  it  ap- 


ENGLISH  CROWN  GRANTS         145 

pears  he  had  been  devolved.  This  is  a  case  known 
as  "the  King  vs.  the  Stewart,  foreman,  treasurer, 
bookkeeper,  and  freeman  of  the  Company,  of  free 
fishermen,  and  dredgemen,  of  the  manor  and  hundred 
of  Faversham,  in  the  County  of  Kent."  In  the 
course  of  the  proofs,  and  as  collateral  evidence  in 
sustaining  the  principal  contentions  in  the  case,  it  was 
shown  that  the  Lord  of  the  said  Manor  who  had  re- 
ceived his  Manor  by  Grant  of  land  from  the  Crown, 
held  title  to  the  Oyster  beds,  or  Oyster  Grounds  un- 
der the  tidal  waters  adjacent  thereto. 

It  was  further  disclosed  in  that  case  that  the  com- 
pany of  free  fishermen  and  dredgemen  of  the  Manor, 
held  of  the  Lord  of  the  Manor,  the  said  Oyster 
Grounds.  It  was  also  shown  in  that  case,  that  in 
order  to  preclude  any  doubt  as  to  the  Oyster  Grounds 
being  subject  to  the  Crown  Grant  of  land  and  con- 
trolled  thereby,  and  that  the  dredging  of  oysters 
thereon  was  not  a  common  right  of  the  people; 
"Every  person  admitted  to  the  freedom  (of  the 
Manor)  hath  before  his  admission  taken  an  oath  that 
he  would  be  a  true  tenant  to  the  Lord  for  the  fishing 
grounds." 

It  appears  that  this  right  of  oyster  dredging  which 
was  claimed  and  held  by  the  Lord  of  the  manor  was 
held  by  him  under  his  land  Grant,  and  that  the  com- 
pany of  free  fishermen  and  dredgemen  "held  of  the 
lord  of  said  Manor  and  hundred,  certain  oyster 
grounds  within  the  said  Manor  and  hundred,  and 
during  all  that  time  have  laid  and  kept  oysters  upon 
the  said  ground  for  the  common  use  and  benefit  of 
the  said  company."  The  right  of  the  Crown  to  have 
made  the  Grant  and  the  right  of  the  Lord  of  the 


146         ENGLISH  CROWN  GRANTS 

Manor  to  have  made  a  Grant  to  the  company  of  fish- 
ermen and  dredgemen  under  his  land  Grant  was  ad- 
mitted and  not  traversed  by  either  party  to  the  action. 
The  three  learned  judges  thereupon  gave  opinions  as 
follows  : 

"Upon  this  state  of  the  case  the  Court  will 
"consider  that  the  fishery  and  the  soil  pass  to- 
"gether."     {Chief  Justice  Lord  Mansfield.) 

"There  is  no  doubt  but  that  a  fishery  is  a  tene- 
"ment.  Trespass  will  lie  for  an  injury  to  it  and 
"it  may  be  recovered  in  ejectment."  (Judge 
Ashhurst.) 

"The  fact  of  letting  a  fishery  is  sufficient  and 
"we  must  presume  that  the  soil  pass  along  with 
"it."     {Judge  Buller.) 

(King  vs.  Alresford  (1786),  Court  of 
King's  Bench,  Durnford  and  East's  Report, 
Vol.  I,  360-1.) 

The  above  named  three  Judges  constituted  one,  if 
not  the  ablest  judicial  triumvirate  that  ever  held 
court  in  England  sitting  together  on  the  same  bench. 

The  bounds  of  the  Manor  of  Faversham  in 
Kent,  England,  are  thus  given  (Hasted,  Vol. 
VI,  page  335)  : 

"The  Town  and  parish  of  Faversham,  the 
"boroughs  of  Harty,  Ore,  Ewell,  Selgrave,  Old- 
"gold,  Scheld,  Chetham,  Brinnystone,  Badles- 
"mere,    Oldebonde    Island,    Roda    Graveyney, 


ENGLISH  CROWN  GRANTS         147 

"Bourdefield  and  the  lands  of  Moukendans,  in 
"the  parish  of  Moukton." 

It  will  be  noticed  that  Oldebonde  Island  is 
described  simply  as  an  Island.  It  should  also  he 
observed  that  the  Court  of  the  Kings  Bench 
held  in  the  case  referred  to  above,  that  the  oyster 
beds  in  the  waters  about  the  Island  were  in- 
cluded in  and  covered  by  the  Grant  of  the  land 
as  on  the  Island  even  though  the  Grant  con- 
tained no  reference  to  submerged  lands  or  lands 
under  water. 

"The  customs  of  Kent  are  a  part  of  the  old 
"Common  Law."   (Tenures  of  Kent,  page  77.) 


The  Court  of  Kings  Bench  was  a  royal  Court,  the 
Justices  of  which  decided  the  King's  causes,  i.  e., 
those  affecting  the  King's  Crown  and  dignity.  This 
Court  had  no  fixed  place  for  holding  its  sessions,  but 
held  Court  where  the  King  happened  to  be.  Orig- 
inally the  King  himself  sat  with  the  Court  and  passed 
upon  the  Issues  involved.  (Crab's  History  of  Eng- 
lish Law.) 

In  the  case  of  the  Trustees  of  Brookhaven  vs. 
Strong  (60  N.  Y.  56-73),  the  New  York  Court  of 
Appeals  set  forth  at  considerable  length  the  right  of 
fishery  under  an  English  Crown  Grant.  The  issue 
raised  was  as  to  the  right  of  the  Town  of  Brook- 
haven  In  and  to  certain  oyster  beds  in  the  Great  South 
Bay,  where  such  right  was  not  precisely  defined  in 
the  language  of  the  Grant.  The  Court,  near  the  con- 
clusion of  its  very  comprehensive  opinion,  says: 


148         ENGLISH  CROWN  GRANTS 

"Besides  the  language  of  the  patents,  'all  riv- 
"ers,  waters,  beaches,  creeks,  harbors,  fishing 
"and  all  other  franchises  to  said  tracts  apper- 
"taining'  is  significant  of  an  intention  to  convey 
"this  very  right.  There  is  no  reason  why  these 
"terms  should  not  be  construed  according  to 
"their  ordinary  meaning,  especially  when  ap- 
"plied  to  land  under  water  included  within  the 
"boundaries." 

Nothing  is  more  certain  than  a  certainty.  There- 
fore, how  redundant  is  the  description  contained  in 
the  Crown  Grant  to  Lancaster  Symes  and  how  com- 
prehensively it  applies  to  the  Staten  Island  Oyster 
Beds,  in  the  light  of  the  foregoing  decisions.  We 
read  from  the  Svmes  Grant,  among  many  other 
rights  conveyed,  the  following: 

"All  meadows,  marshes,  swamps,  pooles, 
"ponds,  waters,  brooks,  fishing  and  fowling, 
"hunting  and  hawking,"  the  same  "lyeing  or  be- 
"ing  or  to  be  had,  used  or  enjoyed  in  them,  the 
"bounds  and  limitts  aforesaid,  and  all  other 
"profitts,  benefitts,  advantages,  hereditaments 
"and  appurtenances  whatsoever  unto  the  said 
"pieces  and  parcells  of  land  and  premises  be« 
"longing  or  in  anywise  appurteying." 

"The  bounds  and  limitts,"  referred  to  were 
the  therein  before  expressed  "bounds  and  lim- 
"itss  of  Richmond  County." 

In  the  case  of  Robins  vs.  Ackerly  (91  N.  Y.  98) 
the  language  of  the  Grant  as  made  to  the  Town  of 


ENGLISH  CROWN  GRANTS         149 

Huntington  is  much  narrower  in  its  application  to 
fishing  rights  than  is  the  language  of  the  Symes  Staten 
Island  Grant.  In  that  case,  however,  the  Court  con- 
strued the  Grant  as  applying  to  Northport  Harbor, 
with  its  oyster  beds. 

In  the  case  of  the  Town  of  Southampton  vs.  Me- 
cox  Bay  Oyster  Co.  (116  N.  Y.  i),  the  Court  con- 
strued the  Crown  Grant  to  the  Town  of  Southamp- 
ton as  including  the  oyster  beds  under  the  waters  of 
the  Bay.  In  that  Grant  also,  the  language  applied 
to  fishing  is  far  more  limited  in  its  scope  than  is  the 
language  contained  in  the  Crown  Grant  to  Lancaster 
Symes,  under  which  all  remaining  Crown  lands  on 
Staten  Island  were  conveyed  to  him. 

"A  right  to  take  fish,  including  shell  fish  in 
"the  sea  and  in  the  arms  and  bays  thereof  and 
"in  rivers  where  the  tide  ebbs  and  flows,  below 
"high  water  mark  is  common  to  all  citizens,  un- 
"less  restrained  by  some  act  on  the  part  of  the 
"Government  or  State  having  sovereignty  over 
"the  same." 

"An  individual  may  acquire  the  right  to  fish 
"in  a  creek  or  river  to  the  exclusion  of  the  pub- 
"lic  by  the  King's  Grant  J'  (Washburne,  on 
Easements  and  Servitudes,  pp.  410,  412.) 

"The  bed  of  all  navigable  rivers  where  the 
"tide  flows  and  reflows  and  of  all  estuaries  or 
"arms  of  the  sea  is  by  law  vested  in  the  Crown." 
(Gann  vs.  The  Free  Fishers  of  Whitstable, 
House  of  Lords  11,  H.  L.  C.  192,  Lord  West- 
bury.) 


ISO        ENGLISH  CROWN  GRANTS 

"The  right  of  the  Sovereign  exists  in  every 
"navigable  river  where  the  sea  ebbs  and  flows. 
"Every  such  river  is  a  royal  river  and  the  fishing 
"of  it  is  a  royal  fishery  and  belongs  to  the  Queen 
"by  her  prerogatives."  (Neill  vs.  Duke  of  Dev- 
onshire, 8  App.  Cas.  (135)  157  Lord 
O'Hagan.) 

"The  private  right  of  fishery  ceases  to  exist 
"below  the  point  where  the  right  of  the  Crown 
"to  the  soil  commences."  (Doss  on  Law  of  Ri- 
parian Rights,  90.) 


THE  GRIP 

OF 

CROWN  GRANTS 

It  has  been  clearly  established  that  the  English 
Crown  had  a  good  and  perfect  title  to  all  lands  on 
and  about  Staten  Island,  in  the  State  of  New  York. 

The  Crown's  title  included  all  lands  above  water 
and  all  lands  under  water  together  with  all  lands  be- 
tween high  and  low  water  mark  in  the  County  of 
Richmond. 

This  proposition  is  absolutely  correct. 

It  was  a  complete  and  perfect  title  as  a  proposi- 
tion of  law.  It  covered  every  square  foot  of  land 
from  the  highest  point  on  the  uplands  to  the  most 
submerged  soil  in  the  rivers,  bays  and  seas,  to  the 
utmost  limits  and  bounds  of  Richmond  County. 

Not  one  square  foot  of  land  within  the  present 
County  of  Richmond  was  exempt  or  escaped  from 
the  grasp  and  grip  of  that  Royal  Title.  Not  one  foot 
of  land  within  the  County's  boundaries  but  originally 
belonged  to  the  Royal  estate.  Each  and  every  title 
descends  from  and  rests  upon  the  Crown's  purchase 
of  Staten  Island  from  the  Indian  inhabitants  thereof 
as  well  as  upon  the  right  of  discovery. 

The  Crown  held,  through  the  Duke  of  York's  pur- 
chase, all  lands  owned  by  the  Indians  of  Staten  Isl- 
and and  closed  out  to  its  grantees  all  that  it  had  so 

151 


152         ENGLISH  CROWN  GRANTS 

acquired.  The  language  of  the  Symes  Grant  is  con- 
clusive and  thereafter  the  Crown  never  again  exer- 
cised a  single  right  or  claim  of  ownership  to  lands  in 
Richmond  County  in  the  State  of  New  York. 

The  Crown  Lands  on  Staten  Island  constituted 
one  solid  and  unbroken  estate  under  one  Imperial 
proprietorship.  It  was  the  personal  estate  of  the 
English  Crown.  The  Crown  owned  every  right,  title 
and  use  in  and  pertaining  to  the  fee  and  was  in  com- 
plete possession  thereof. 

The  English  Crown  could  have  permitted  its  sub- 
jects to  cultivate  the  lands;  erect  houses  thereon,  es- 
tablish ferries  therefrom  or  thereto.  It  could  have 
also  granted  the  right  to  fish,  hawk  and  hunt  thereon, 
cultivate  and  dig  oysters  in  the  seas  and  bays  thereof; 
or  it  could  have  refused  or  denied  each  and  every 
such  privilege.  No  English  citizens  would  have  ques- 
tioned such  indulgence  or  forbearance  by  their  Sover- 
eign. 

The  English  Crown  was  the  owner  of  the  lands  in 
fee,  pure  and  simple  as  an  individual  proprietor. 
What  is  more,  and  it  is  a  very  important  historical 
fact,  it  undertook  to  and  did  attach  Staten  Island  to 
the  Crown's  personal  Manor  of  East  Greenwich  in 
the  County  of  Kent,  England.  Staten  Island  by  such 
Royal  act  became  an  integral  part  of  that  Manor 
to  which  for  a  long  time  legal  accountings  were  made 
of  all  revenues  received  therefrom  by  the  Crown's 
agents  pursuant  to  the  terms  of  the  Crown  Grants 
issued  for  lands  thereon. 

Individual  and  personal  rights  and  privileges  be- 
longing to  the  Crown  as  the  personal  owner  of  the 
Manor  of  East  Greenwich  in  the  County  of  Kent, 


ENGLISH  CROWN  GRANTS         153 

England,  also  belonged  to  the  Crown  as  the  personal 
owner  of  Staten  Island.  If  the  Crown  could  sell  the 
one  it  could  sell  the  other.  It  could  lease  its  country 
estate  at  East  Greenwich,  and  it  could  lease  its  lands 
on  Staten  Island.  While  the  Sovereign  was  King  or 
Queen  that  same  Sovereign  was  also  Lord  or  Lady 
of  the  Manor  of  East  Greenwich  in  the  County  of 
Kent.  Staten  Island,  while  under  the  political  juris- 
diction of  the  Crown  was  the  personal  property  of 
the  Lord  or  Lady  of  the  Manor  of  East  Greenwich. 

The  laws  governing  and  protecting  proprietorship 
of  manorial  lands  in  England,  whether  owned  by 
prince  or  plebian,  likewise  threw  their  protection  over 
title  to  lands  in  the  province  of  New  York,  whether 
held  by  the  Sovereign  or  the  settler,  as  a  part  of  a 
personal  and  individual  estate. 

The  above  being  true,  we  turn  to  an  investigation 
of  the  various  English  Crown  Grants  made  by  the 
English  crown  to  lands  on  Staten  Island  based  upon 
the  indisputable  title  vested  in  the  English  Crown,  as 
Lord  or  Lady  of  the  Manor. 

To  understand  the  rights  and  privileges  covered 
and  included  in  the  Crown  Grants  to  lands  on  Staten 
Island  three  acts  are  desirable,  yea.  In  fact  are  es- 
sential : 

First — Seal  up  or  dismiss  from  all  consideration 
every  statute  enacted  since  the  year  1708, 
whether  by  Parliament,  Province,  State  or 
Federal  Government. 

Second — Use  profound  discrimination  in  reading 
the  decisions  of  the  English,  State  and  Fed- 
eral Courts. 


154        ENGLISH  CROWN  GRANTS 

Third — In  so  far  as  they  interpret  the  common  law 
of  England  from  1635  to  1708  they  apply 
and  govern.  Vested  rights  acquired  in  that 
period  cannot  be  adversely  affected  by  any 
subsequent  changes  in  statutory  or  common 
law  rights  in  property. 

Remember  that  the  facts  must  be  similar  if  the 
decision  is  to  control. 

All  of  the  Grants  made  by  the  Crown  of  England 
to  lands  on  Staten  Island  were  apparently  leases  in 
form,  but  were  deeds  in  fact.  They  were  all  subject 
to  the  payment  of  annual  "quit-rents,"  representing 
a  strict  condition  that  the  grantee  should  pay  to  the 
Crown  a  certain  fixed  sum  each  year  or  forfeit  pos- 
session thereof  at  the  will  of  the  Crown.  The  fail- 
ure to  pay  the  quit-rents  entitled  the  Crown  to  re- 
enter and  take  possession  of  the  land  theretofore 
granted. 

A  Crown  Grant  did  not  become  void  upon  failure 
to  pay  the  quit-rents  until  notice  of  forfeiture  was 
served  by  the  Crown  upon  the  Grantee  and  proper 
legal  proceedings  were  completed,  to  vacate  the  Grant 
or  nullify  the  same. 

It  has  been  judicially  decided  that  this  rental  con- 
dition "ran  with  the  land."  The  Grant  when  prop- 
erly recorded,  gave  good  and  sufficient  public  notice 
that  the  Grantee's  right  of  occupancy  or  pos- 
session under  his  title  absolutely  depended  upon  the 
payment  by  him  of  the  stipulated  quit-rents.  Notice 
of  a  default  in  quit-rents  and  a  notice  of  the  cancel- 
lation of  the  Grant  by  the  Crown  was  necessary  to 
make  the  Grant  void.     Proceedings  in  court  must 


ENGLISH  CROWN  GRANTS         155 

then  be  undertaken  by  the  Crown  in  order  to  re- 
obtain  possession. 

The  term  "quit-rents"  was  simply  another  name 
for  rents.  When  the  Grantee  paid  the  quit  rent  it 
"quit  the  rent"  for  the  period  covered  by  the  pay- 
ment. 

"Pay  rent,  keep  possession; 
"Default  in  rent,  lose  possession." 

This  is  a  maxim  relating  to  leases  which  is  too  well 
understood  by  all  generations  to  need  any  amplifi- 
cation here.  The  same  rule  applied  to  Grants  of 
lands  or  deeds  thereto  which  were  subject  to  even 
nominal  rental. 

Certain  conditions  were  necessary  to  make  a  Grant 
complete,  valid  and  not  subject  to  forfeiture. 

(a)  It  must  be  dated. 

(b)  It  must  be  patented. 

(c)  Its  quit  rents  must  be  regularly  paid,  or  Its 
quit  rents  must  be  commuted;  that  is  paid 
in  advance  by  one  inclusive  payment. 

There  were  over  one  hundred  and  fifty  English 
Crown  Grants  issued  by  the  Crown,  to  lands  on 
Staten  Island.  These  Grants  may  be  classified  in 
eight  distinct  groups  or  classes : 

(Class  A)  Grants  under  which  rents  were  paid 
until  further  payments  were  com- 
muted under  New  York  Statutes,  by 
a  cash  payment  in  full.  Titles  in 
fee  and  clear. 


156         ENGLISH  CROWN  GRANTS 

(Class  B)  Grants  under  which  quit  rents  were 
paid  for  a  time,  but  payments  then 
ceased.  They  were  not  commuted. 
Rights  of  forfeiture  of  titles  and 
repossession  of  lands  thereby  accrued 
under  the  terms  of  the  original 
Grants. 

(Class  C)  Grants  under  which  no  quit  rents 
were  paid.  Right  of  forfeiture  of 
titles  and  repossession  of  lands 
thereby  accrued  under  the  terms  of 
the  original  Grants. 

(Class  D)  Grants  which  were  made  but  not 
confirmed  by  Council.  No  titles 
passed.  No  quit  rents  were  paid. 
Confirmation  of  Grants  was  neces- 
sary to  their  legality  and  payment 
of  quit  rents  was  required  under  the 
terms  of  the  original  Grants. 

(Class  E)  Grants  which  were  prepared  but  not 
dated  and  not  patented.  No  quit 
rents  were  paid.     No  titles  passed. 

(Class  F)  Grants  which  were  prepared  but  not 
dated  and  not  patented.  No  titles 
passed.  Pending  the  uncertainty  as 
to  the  issue  of  the  patents,  some 
small  quit  rents  were  paid. 

(Class  G)  Grants  which  were  not  recorded  un- 
til after  the  Grant  to  Lancaster 
Symes  had  been  made,  issued  and  re- 
corded covering  all  vacant  and  un- 
appropriated lands  within  the  limits 
and  bounds  of  Richmond  County. 


ENGLISH  CROWN  GRANTS         157^ 

Class  G  Grants  were  as  follows : 

1st     To  Adrlensen  from  a  form- 
er Grantee  of  the  Crown. 

2nd  To  Dusachoy,  consented  to 
by  Lancaster  Symes  and  con- 
firmed by  the  Crown. 

3rd  To  Jorissee  from  former 
grantee  of  the  Crown. 
It  was  a  common  custom  for 
a  Grantee  when  holding  land 
under  a  Crown  Grant  to  file 
a  request  with  the  Crown  to 
issue  a  Grant  to  his  customer 
or  sub-grantee.  This  gave 
such  a  sub-grantee  a  Royal 
Grant  direct  from  the  Sov- 
ereign and  released  the  origi- 
nal Grantee. 

4th  To  Bellue  and  Dove.  A  20 
year  lease  by  Lancaster 
Symes  of  Shore  front  on 
Sand  Bay  for  Ferry  pur- 
poses, and  a  ferry  franchise 
from  the  Crown. 

5th  To  Shotwell.  This  was  a 
Royal  confirmation  of  a  title 
by  adverse  possession  "up- 
ward of  35  years." 
As  forty  years  adverse  pos- 
session was  necessary  to  ob- 
tain a  title  against  the 
Crown,  this  Grant  was  made 


iS8         ENGLISH  CROWN  GRANTS 

by  directions  from  Symes  or 
by  his  consent. 

(Class  H)  This  class  covers  only  the  Crown 
Grant  to  Lancaster  Symes.  Quit 
rents  were  paid  until  commuted  un- 
der the  New  York  Statutes  by  a  cash 
payment  in  full,  which  commutation 
was  in  effect  under  the  law  a  new 
Grant  to  Lancaster  Symes  from  the 
State  of  New  York.  The  commuta- 
tion of  quit  rents  has  been  judicially 
decided  as  being  in  legal  effect,  the 
issue  of  a  New  Grant.  (Class  H  is 
the  same  in  every  respect  as  Class 
A.) 

By  a  comparison  of  this  schedule  with  the  map  of 
classified  lands  on  Staten  Island,  due  reference  being 
had  to  the  conditions  set  forth  herein  as  necessary  to 
make  a  Crown  Grant  legal  and  valid,  the  reader  can 
readily  understand  where  the  legal  title  to  any  and 
every  piece  of  land  on  Staten  Island  rested  after  the 
final  and  inclusive  Grant  was  made  by  the  English 
Crown  to  Lancaster  Symes  in  1708.  This  Grant  to 
Lancaster  Symes  covered  and  included  all  lands  not 
previously  granted  and  patented. 

Whatever  titles  to  lands  in  Richmond  County  were 
then  (1708)  vested  in  the  English  Crown  and  which 
it  had  the  right  to  grant  away,  it  did  grant  to  Lan- 
caster Symes. 

It  has  been  found  that  many  Grants  were  applied 
for  but  were  not  issued  by  the  Crown;  many  other 
Grants  having  been  applied  for  were  issued  by  the 


ENGLISH  CROWN  GRANTS         159 

Crown,  but  were  not  patented  by  the  Grantees.  Many 
other  Grants  went  through  such  formalities  but  the 
Grantee  paid  no  quit  rents  thereunder.  Other  errors 
and  omissions  are  clearly  shown  of  record,  which  ren- 
dered nugatory  and  of  no  legal  force  or  effect  certain 
other  Grants. 

It  is  now  possible  for  the  State  of  New  York  to 
cure  these  defects  by  exercising  its  right  of  forfeiture 
of  and  re-entry  upon  the  lands  affected  by  such  errors 
and  defaults.  Thereupon  it  might  regrant  such  lands 
to  the  present  record  owners  thereof  and  every  cloud 
would  vanish  from  land  titles  on  Staten  Island  where 
such  defects  are  created  by  the  difficulties  enumerated 
here. 

Class  A  Grants — These  Crown  Grants  were  per- 
fect. They  were  duly  issued,  properly  dated  and  pat- 
ented. The  quit  rents  thereunder  were  paid  up  to  the 
time  when  they  were  subsequently  commuted.  That 
is,  all  quit  rents  thereunder  were  paid  for  a  time  and 
then  the  State  of  New  York,  after  the  Revolutionary 
War,  accepted  one  payment  in  full  of  all  further  de- 
mands whereupon  all  rents  ceased.  It  has  been  judi- 
cially determined  that  the  complete  settlement  of  quit 
rents  under  a  Crown  Grant  by  a  payment  in  advance, 
of  an  agreed  sum,  in  full  payment  therefor  converts 
such  a  title  into  a  complete  fee.  It  has  been  likewise 
determined  that  the  acceptance  of  such  a  payment  by 
the  State  is  equivalent  to  and  "constitutes  a  new  Grant 
in  fee,  by  the  State."  The  acceptance  of  such  a  pay- 
ment by  the  State  deprives  the  State  of  any  right 
thereafter  to  challenge  the  validity  and  regularity  of 
such  Grant. 

There  appears  to  be  but  two  Crown  Grants  on 


i6o         ENGLISH  CROWN  GRANTS 

Staten  Island  which  can  be  properly  included  in 
Class  A.  One  of  the  two  Grants  referred  to  is  the 
Crown  Grant  to  Lancaster  Symes,  but  which  Grants 
because  of  its  extent,  has  been  specially  listed  in 
Class  H. 

Class  B  Grants — ^The  Grantees  in  this  classification 
received  their  Grants  and  patented  the  same.  They 
paid  their  quit  rents  for  a  time,  but  subsequently  de- 
faulted thereon  and  ceased  to  pay.  As  these  Grants 
were  issued  conditional  upon  the  payment  by  the 
Grantee  of  annual  rentals  and  as  the  quit  rents  were 
not  paid  as  required  under  the  terms  of  the  Grant, 
the  Crown's  right  of  forfeiture  and  re-entry  accrued, 
which  right  is  now  vested  in  the  State  of  New  York. 

Class  C  Grants — The  Grantees  in  this  class  went 
through  the  proper  forms  of  having  their  Grants  is- 
sued, dated  and  patented,  but  no  quit  rents  were  ever 
paid  thereunder.  The  consideration  for  the  issue  of 
these  Class  C  Grants  was  the  payment  of  quit  rents 
and  rentals  thereunder  were  never  paid.  All  of  the 
Grants  in  this  class  became  and  in  fact  always  were 
null  and  void  and  of  no  effect.  "No  title  or  interest 
in  lands  can  pass  under  any  instrument  where  a  good 
and  valid  consideration  is  not  paid." 

Class  D  Grants — The  titles  in  this  class  are  even 
more  striking  in  their  defects.  The  parties  securing 
these  Grants  apparently  not  caring  to  pay  the  quit 
rents  or  perchance  having  changed  their  minds  as  to 
the  desired  locations  did  not  patent  their  Grants.  As 
a  fundamental  proposition  of  law,  a  Grant  must  be 
patented  to  be  valid.  The  Grants  in  this  class  not 
having  been  patented  no  quit  rents  were  paid  there- 
under.    Such  being  the  case  the  Grants  themselves 


ENGLISH  CROWN  GRANTS         i6i 

were  never  completed.  This  vital  and  fundamental 
defect  renders  these  so-called  Grants  as  if  never  ap- 
plied for. 

Class  E  Grants — The  Grants  in  this  class  were  pre- 
pared by  the  Crown,  but  evidently  awaiting  some 
proper  action  by  the  Grantees,  were  not  even  dated. 
Not  being  dated,  and  no  rents  or  consideration  hav- 
ing been  paid  thereunder,  they  were  clearly  and 
plainly  null  and  void,  and  of  no  effect  from  their  very 
inception. 

No  date,  no  consideration,  no  patent  means  beyond 
cavil  no  Grant. 

Class  F  Grants — The  Grants  in  this  class,  for 
some  undisclosed  reasons,  were  held  up  by  the 
Crown.  They  were  not  dated  nor  patented.  The 
Grantees  made  a  few  payments  to  the  English  Crown 
in  anticipation  of  receiving  a  Grant,  or  as  was  fre- 
quently done  in  those  days,  they  rented  for  one  or  a 
few  seasons  certain  pasturage  or  tillable  lands  and 
then  quit  the  use  or  occupancy  thereof  without  the 
issue  to  them  of  a  Grant. 

Not  having  been  issued  or  patented  and  the  rentals 
having  ceased,  no  rights  as  Grantees  ever  accrued 
thereunder. 

Class  G  Grants — As  above  explained,  these  Grants 
were  recorded  after  the  Crown  Grant  to  Lancaster 
Symes  was  recorded.  They  were  Grants  made  sub- 
ject to  the  rights  and  consent  of  Lancaster  Symes,  as 
previously  explained  in  this  chapter  or  of  lands  which 
had  been  granted  by  the  Crown  previous  to  its  Grant 
to  Lancaster  Symes. 

Class  H  Grants — ^This  is  the  Grant  to  Lancaster 


i62         ENGLISH  CROWN  GRANTS 

Symes  and  is  on  a  parity  with  and  is  properly  in- 
cluded in  Class  A  Grants. 

In  the  light  of  the  foregoing  statement  covering 
every  English  Crown  Grant  issued  to  lands  on  Staten 
Island  we  turn  to  a  map  of  the  Island  on  which  there 
has  been  clearly  outlined  the  above  classified  lands. 
This  map  of  classified  lands  is  based  upon  a  map  of 
Crown  Grants  prepared  by  oflicial  surveyors  on  which 
map  every  English  Crown  Grant  to  lands  on  Staten 
Island  is  located,  by  metes  and  bounds. 

We  have  followed  with  great  care  the  official  rec- 
ords and  the  map  prepared  by  the  Government  Sur- 
veyors in  order  that  the  information  disclosed  on  this 
classified  map  might  rest  upon  official  documentary 
proof  and  be  in  no  wise  a  conjecture,  or  the  expres- 
sion of  an  individual  judgment  or  opinion  on  the 
part  of  the  author. 

We  simply  submit  the  historic  proofs  at  hand  for 
what  they  may  be  worth  for  use  in  clearing  up  the 
titles  to  lands  on  Staten  Island. 

On  the  map  of  lands  which  we  have  classified  ac- 
cording to  information  obtained  by  us  from  official 
sources  we  show  the  relation  of  all  titles  to  lands  on 
Staten  Island  at  the  close  of  the  year  1708  as  such 
titles  appear  related  to  the  Original  English  Crown 
Grants  from  which  they  did  or  supposedly  did 
descend. 

It  is  a  pertinent  inquiry  as  to  whether  any  of  the 
Grantees  referred  to,  who  were  in  default  in  payment 
of  their  quit  rents,  continued  to  occupy  and  possess 
the  lands  which  may  have  been  taken  over  by  them 
under  their  respective  Grants. 

Adverse  possession  as  against  the  Crown  required 


ENGLISH  CROWN  GRANTS         163 

forty  years  of  continuous  occupanqr  under  strict  and 
arbitrary  conditions  difficult  to  perform  and  the  per- 
formance of  which  is  more  difficult  to  prove. 

With  this  possibility  in  view,  we  examined  with 
great  care  other  proper  public  records  and  discovered 
that  practically  all  of  the  Grantees,  so  in  default, 
never  gave  a  deed  or  lease  to  any  other  person  or 
persons  of  the  lands  described  in  their  respective 
Grants.  Neither  do  we  find  the  lands  so  referred  to 
included  as  an  asset  in  their  respective  estates  at  their 
decease. 

It  is  a  very  proper  conclusion  that  the  Grantees 
(a)  whose  lands  were  not  patented,  and  (b)  who 
failed  to  pay  any  of  their  quit  rents,  and  (c)  who  is- 
sued no  leases  or  deeds  therefor  during  their  life- 
time, and  (d)  whose  estates  failed  to  include  as  an 
asset  lands  referred  to,  either  never  took  physical  pos- 
session of  the  lands  included  in  such  Grants,  or  then 
abandoned  the  land.  In  fact,  failure  to  occupy,  or 
abandonment,  speak  out  from  a  vast  majority  of  the 
Staten  Island  Crown  Grants  issued  by  the  English 
Crown,  under  Class  B  Grants  to  Class  G  Grants  in- 
clusive. 

This  reasonable  presumption  is  not  only  sustained 
by  the  public  records,  but  is  supported  by  historical 
authorities.  Many  of  the  early  English  settlers  aban- 
doned their  lands  and  moved  to  New  Jersey  and 
Pennsylvania,  where  they  took  up  other  lands.  Many 
others,  descendants  of  original  Grantees,  being  loyal- 
ists, took  the  side  of  England  in  the  Revolutionary 
War  and  fled  when  peace  was  made.  Much  land 
was  thereby  abandoned,  while  other  land  was 
escheated  by  the  State  of  New  York  for  treason. 


id4        ENGLISH  CROWN  GRANTS 

In  1708  the  Crown  closed  out  to  Lancaster  Symes 
all  of  the  Crown  lands  within  "the  bounds  and  limits 
of  Richmond  County,"  New  York. 

It  is  in  no  wise  strange  that  after  the  treatment  the 
English  Crown  had  received  from  a  large  majority 
of  its  Staten  Island  Grantees,  it  should  have  closed 
out  its  title  therein  to  "its  loyal  and  faithful  subject," 
Lancaster  Symes.  It  is  not  intended  by  the  foregoing 
statement  to  even  imply  that  at  the  present  time  all 
of  the  lands  so  originally  included  under  Class  B 
Grants  to  Class  G  Grants,  inclusive,  descended  to  and 
are  now  possessed  by  the  present  owner  of  the  Lan- 
caster Symes  title.  Such  a  theory  would  be  contrary 
to  the  fact,  unfair,  unjust,  and  hurtful  to  many  inno- 
cent and  true  owners  of  much  of  the  lands  so  re- 
ferred to. 

There  are  two  distinct  ways  by  which  lands  orig- 
inally granted,  and  which  we  have  included  in  Class 
H  Grants,  may  have  become  the  properties  of  parties 
in  no  wise  interested  in  the  original  Crown  Grants 
and  who  can  now  claim  no  direct  descent  of  title 
therefrom. 

The  record  title  should,  however,  be  tracable  back 
to  an  original  Crown  Grant  to  avert  danger  of  de- 
feat under  even  an  apparently  strong  claim  of  ad- 
verse possession  on  the  part  of  those  now  in  posses- 
sion or  from  whom  their  claim  of  title  may  descend. 
Even  to  establish  a  title  by  adverse  possession  such  a 
transcript  of  record  is  very  desirable. 

Titles  may  have  been  obtained  through  the 
medium  of  tax  sales.  If  any  of  the  lands  covered  by 
and  included  in  the  original  Crown  Grants  have  been 
duly  and  properly  assessed  and  the  owners  thereof 


ENGLISH  CROWN  GRANTS         165 

have  defaulted  in  the  payment  of  taxes  thereon,  and 
if  such  properties  have  thereafter  been  properly  ex- 
posed for  sale  and  properly  and  legally  sold  for  taxes 
in  strict  conformity  with  the  statutes,  then  the  title 
thereto  may  have  passed  by  virtue  of  such  tax  sale  to 
parties  other  than  the  original  owners  or  their  de- 
scendants in  title  of  record. 

In  matters  of  tax  sales,  "the  State  proceeds  in 
"a  summary  way  to  seize  and  appropriate  the 
"property  of  the  citizen  in  invitum,  and  the  sale 
"and  conveyance  are  but  steps  in  the  proceeding 
"which  must  be  shown  to  have  been  duly  insti- 
"tuted  and  regularly  prosecuted,  or  the  at- 
"tempted  confiscation  will  fail  unless  there  is 
"some  statute  which  makes  the  deed  presumptive 
"or  conclusive  evidence  of  regularity."  (Da- 
lancey  vs.  Piepgras  138,  N.  Y.  26.) 

In  view,"  however,  of  the  manner  in  which  assess- 
ments and  tax  sales  were  conducted  up  to  within  a 
very  short  period  on  Staten  Island  the  average  tax 
title,  acquired  by  virtue  of  a  tax  sale,  is  somewhat  of 
the  nature  of  "a  snair  and  delusion,"  and  is  easily  set 
aside  by  a  proper  procedure,  if  we  correctly  judge 
the  record. 

Parties  now  in  possession  of  lands  included  in  and 
covered  by  any  of  the  Original  Crown  Grants  and 
who  cannot  in  any  wise  trace  their  chain  of  titles  back 
to  the  Crown  Grants  originally  covering  the  lands 
they  occupy,  may  be  able  to  show  a  good  and  valid 
title  to  the  lands  referred  to  through  adverse  posses- 
sion on  their  part  or  from  some  one  from  whom  their 
title  descended  who  was  able  to  and  did  clearly  show 


1 66         ENGLISH  CROWN  GRANTS 

such  proof  of  adverse  possession  as  permitted  under 
the  law. 

The  statutes  of  the  State  clearly  provide  a  method 
by  which  title  to  a  property  actually  owned  by  another 
may  be  obtained  by  adverse  possession  under  certain 
circumstances  and  conditions. 

The  procedure  under  such  legislation  and  the 
method  to  be  pursued  in  order  to  obtain  such  a  title 
are  very  clearly  and  distinctly  prescribed  in  the  Stat- 
utes, while  the  decisions  of  the  courts  are  very  con- 
sistent as  to  what  is  necessary  to  establish  a  title  by 
adverse  possession. 

It  is  obnoxious  to  the  law  and  contrary  to  con- 
science or  equity  that  a  man  shall  knowingly  and  in  a 
hostile  manner  seize  upon,  take  possession  of,  and 
hold  property  that  is  not  his  own,  and  by  such  pro- 
cedure divest  the  lawful  owner  thereof  of  his  rights 
therein,  to  the  benefit  and  enrichment  of  the  party 
who  by  legal  force  and  violence  obtained  possession 
thereof. 

Judges  shrink  from  decreeing  that  a  moral 
wrong,  from  age  and  persistence  therein,  has  be- 
come a  legal  right. 

The  state  of  mind,  however,  which  protests 
against  a  practice  which  in  itself  Is  of  the  nature  of 
larceny  is  mollified  and  altered  to  a  degree  by  miti- 
gating and  extenuating  circumstances.  In  order  that 
a  member  of  society  shall  transform  an  act  that  was 
originally  of  the  nature  of  a  legal  and  moral  wrong 
into  an  act  that  is  to  be  tolerated,  permitted  and  ap- 
proved by  a  Court  of  Justice  or  Equity,  the  party 
thereto  Is  sternly  required  to  strictly  comply  with 


ENGLISH  CROWN  GRANTS         167 

severe  conditions  laid  down  by  the  law.  To  main- 
tain a  title  based  upon  adverse  possession  is  a  difficult 
task  and  presents  an  issue  which,  though  tolerated, 
is  not  welcomed  in  the  Halls  of  Justice  and  Equity. 

It  is  therefore  not  strange  that  Title  Companies  in 
the  majority  of  instances  refuse  to  guarantee  titles 
obtained  by  adverse  possession  or  tax  sales,  and  con- 
servative money  lenders  turn  from  such  titles  as  too 
hazardous  a  security  for  loans. 

The  American  Title  and  Trust  Company,  the  re- 
cent record  owner  of  the  titles  to  land  on  Staten 
Island  descending  from  and  through  Lancaster 
Symes,  had  no  purpose  nor  did  it  desire  to  deprive 
any  one  of  the  possession  of  lands  on  Staten  Island 
if  such  an  one  had  properly  and  lawfully  obtained  his 
title  by  adverse  possession,  legal  tax  sale,  or  in  any 
other  manner  approved  by  the  law  of  the  land  or  the 
conscience  of  the  community. 

The  Title  Company  referred  to,  upon  satisfying 
itself  of  such  a  state  of  facts  in  any  particular  in- 
stance, proposed  to  frankly  and  unhesitatingly  admit 
and  recognize  the  same,  regardless  of  original  wrong- 
ful trespass  upon  and  violent  assertion  of  a  forcible 
possession  of  lands  of  which  it  had  been  so  deprived. 

To  illustrate  this  latter  conclusion,  we  cite  the  fol- 
lowing instance : 

The  American  Title  and  Trust  Company  was 
called  upon  by  a  citizen  of  Staten  Island  whose  chief 
and  practically  only  estate  is  a  comfortable  house  in 
which  he  lives  and  a  few  acres  of  land  on  Staten 
Island  favorably  situated  and  upon  which  his  house  is 
located. 

The  elderly  man  informed  the  Title  Company  that 


1 68         ENGLISH  CROWN  GRANTS 

he  had  suffered  from  many  sleepless  nights  since  the 
acquisition  by  the  American  Title  and  Trust  Com- 
pany of  the  Symes  title  to  lands  on  Staten  Island.  He 
said  that  he  knew  that  the  land  he  occupied  had  be- 
longed to  Lancaster  Symes.  He  further  stated  that 
he  "wanted  to  be  true  and  honest  with  all  men  and 
that  he  did  not  wish  to  die  holding  lands  which  were 
in  fact  not  his  own."  He  further  remarked  that  he 
"wanted  no  trouble  to  occur  after  his  decease  over  his 
small  possession."  With  this  statement  he  offered  to 
surrender  the  title  to  his  home  and  so  "square  his  con- 
science" with  the  world. 

The  American  Title  and  Trust  Company  knew  as 
a  proposition  of  law  that  this  honest  old  citizen  had 
in  fact  acquired  a  good  and  perfect  legal  possessory 
right  to  his  home,  by  adverse  possession.  It  so  in- 
formed him  and  explained  to  him  the  law.  He  was 
shown  that  in  the  first  instance  Lancaster  Symes  had 
a  perfect  title  to  the  plot  of  ground  referred  to,  but 
that  now  under  the  Statutes  of  the  State  of  New 
York,  such  right  of  possession  had  ceased.  There- 
fore, the  American  Title  and  Trust  Company  refused 
to  accept  the  tender  of  the  deed  on  the  theory  that  it 
would  be  depriving  the  old  gentleman  of  property 
that  was  lawfully  possessed  by  him  and  to  which  the 
Title  Company  had  no  legal  or  equitable  claim.  "He 
who  asks  equity  must  do  equity."  The  officers  of  the 
Title  Company,  somewhat  like  the  old  man,  wanted 
their  consciences  "square  with  the  world." 

Adverse  possession  cannot  be  obtained  by  the  State 
or  by  the  City,  but  only  by  such  private  citizens  and 
corporations  who  for  not  less  than  twenty  years  in 
some  instances  and  for  not  less  than  forty  years  in 


ENGLISH  CROWN  GRANTS         169 

other  circumstances  have  strictly  complied  with  the 
very  stringent  law,  under  which  definite  and  com- 
plete proof  necessary  to  maintain  adverse  possession 
is  difficult  and  trying  to  establish.  While  such  ad- 
verse possession  may  be  a  fact,  the  proof  thereof  as 
prescribed  by  law  and  insisted  upon  by  the  courts  is 
exceedingly  difficult  in  the  majority  of  instances. 


TITLE    GUARANTEES 

AND 

CROWN    GRANTS. 

The  Book  entitled  "THE  MAJOR  AND  THE 
QUEEN"  was  written  that  it  might  rescue  from  al- 
most complete  oblivion  the  name  and  reputation  of 
Major  Lancaster  Symes,  a  prominent  character  in  the 
Colonial  History  of  the  Province  of  New  York. 

Major  Lancaster  Symes  died  possessed  of  an  ex- 
tensive estate.  He  was  the  owner  of  more  than  one 
half  of  Staten  Island.  His  property  interests  at  the 
time  of  his  decease  were  very  widespread.  They  in- 
cluded possessions  in  Holland,  hereditary  rights  in 
England  and  real  estate  in  several  counties  in  the 
Province  of  New  York. 

No  Crown  Grant  to  Lancaster  Symes  covering 
lands  in  any  other  County  in  the  State  of  New  York 
has  ever  been  voided,  nor  has  his  Richmond  County 
Grant  ever  been  traversed. 

During  the  past  several  years  the  author  of  this 
narrative  has  been  making  a  successful  international 
search  for  records  and  documents  relating  to  Major 
Lancaster  Symes. 

These  efforts  resulted  in  remarkable  disclosures. 
The  awe-inspiring  mystery  with  which  vivid  imagina- 
tions had  cloaked  the  name  and  fame  of  Major  Symes 
has  been  completely  dispelled.     In  the  brighter  light 

170 


ENGLISH  CROWN  GRANTS         171 

of  recently  revealed  history  there  stands  before  the 
mind  the  historic  picture  of  a  gallant  officer  and  a 
loyal  and  true  citizen  who  was  the  owner  of  a  valu- 
able estate,  a  portion  of  which  was  located  on  Staten 
Island.  He  died,  having  bequeathed  his  property  to 
his  family. 

He  died  fully  trusting  that  the  conscience  and  the 
laws  of  the  public  which  he  had  so  faithfully  de- 
fended and  served,  would  safeguard  his  posterity  in 
their  rightful  inheritance. 

The  generation  in  which  he  had  lived  remembered 
him  with  affection  and  the  following  generation  hon- 
ored his  memory.  Then  the  stern  resolve  and  defi- 
ance of  the  Colonists  hurled  at  the  English  Crown 
precipitated  the  American  Revolutionary  War,  in  the 
wild  excitement  of  which  much  that  was  English  was 
execrated. 

The  Colonists  had  little  time  or  thought  for  the 
memory  of  the  dead  English  soldier  or  for  that  of 
earlier  generations,  when  fighting  two  of  their  battles 
in  the  very  churchyard  and  Colonial  burying  ground 
given  by  this  same  Lancaster  Symes  to  St.  Andrew's 
Church  and  in  which  "God's  Acre"  slept  many  of 
their  own  sacred  dead. 

The  passions  of  war  smothered  the  impulses  of 
gratitude. 

St.  Andrew's  Protestant  Episcopal  Church  in 
Richmond,  Staten  Island,  which  Major  Symes  had 
generously  aided  by  gifts  of  lands,  became  a  war  hos- 
pital, a  battle  ground  and  fuel  for  battle  flames. 
Some  of  its  English  members  were  driven  into  exile 
for  not  espousing  the  cause  of  the  Colonists.  Others 
of  its  friends  were  banished  under  sentence  of  death 


172         ENGLISH  CROWN  GRANTS 

for  loyalty  to  their  Mother  Country.  The  rejuv- 
enated St.  Andrew's  Church,  having  been  previously 
rent,  torn  and  impoverished  for  a  time  by  war  de- 
spoilment and  flames,  forgot  its  benefactor.  It  even 
dreamed  that  he  belonged  to  the  myths.  His  memory 
so  completely  faded  from  its  recollections  that  for 
generations  it  appears  to  have  lost  all  thought  of  him 
in  connection  with  a  large  acreage  of  land  received 
by  it  as  a  gift  from  Major  Lancaster  Symes,  notwith- 
standing the  fact  that  the  deed  conveying  such  en- 
dowment was  clearly  recorded  within  two  hundred 
feet  of  the  parish  house. 

If  the  Church,  the  receiver  of  his  substantial  bene- 
factions, could  so  forget  its  benefactor,  is  it  at  all 
strange  that  after  the  passions  of  Revolutionary  War 
and  the  troubles  of  reconstructing  social  order  at  its 
close,  the  public  should  also  have  forgotten  him,  a 
faithful  public  servant? 

Many  tracts  of  Staten  Island  lands  were  sold  and 
transferred,  immediately  subsequent  to  the  Grant 
made  to  Lancaster  Symes  in  1708.  Such  operations 
in  real  estate  have  continued  on  Staten  Island  down 
to  the  present  time,  a  period  of  over  two  centuries. 

According  to  official  records  in  the  County  Seat  of 
Richmond  County,  not  a  map  showing  one  single 
transfer  of  lands  on  Staten  Island  appears  of  record 
in  the  County  Clerk's  Office  for  one  century  follow- 
ing the  Grant  to  Symes.  Not  a  map  of  record  in  that 
County  Seat  showing  the  transfer  of  any  Staten 
Island  real  estate  for  a  period  of  over  one  hundred 
years ! 

For  a  time  following  that  absolute  void  of  one  cen- 
tury in  the  map  records  in  Richmond  County,  such 


ENGLISH  CROWN  GRANTS         173 

maps  as  were  filed  covered  but  small  plots  of  land  and 
single  farms.  In  many  cases  such  maps  did  not  even 
adequately  or  clearly  represent  the  descriptions  in  the 
deeds  to  which  they  referred. 

One  of  the  most  respected,  conservative  and  pro- 
gressive of  Title  Companies  recently  made  public  an 
announcement  that  it  will  not  make  guaranteed 
searches  of  titles  to  lands  on  Staten  Island  extending 
back  to  the  original  Crown  Grants. 

This  is  seemingly  a  strange  policy  to  be  announced 
or  pursued  by  such  a  representative  Title  Company, 
but  as  the  author  understands  the  situation,  it  is  in 
harmony  with  a  policy  quite  uniformly  adopted  by 
other  Title  Companies  doing  business  on  Staten 
Island. 

The  situation  as  to  many  of  the  titles  to  Staten 
Island  real  estate,  however,  demanded  such  an  atti- 
tude. Title  Company  officers,  directors  and  counsel 
acting  as  trustees  for  interests  they  represent  must 
take  notice  of  and  be  governed  by  conditions  as  they 
exist.  The  amazing  attitude  of  public  officialdom 
down  to  within  a  recent  "handbreadth"  of  time  has 
been  based  upon  the  incorrect  theory  that  no  official 
survey  of  Staten  Island  has  been  made  in  the  past 
and  that  the  Island  has  not  been  mapped. 

The  records  of  Richmond  County  fail  to  show  any 
complete  official  survey  of  Staten  Island.  We  have 
stated  that  for  a  space  of  one  century  (1710-1810) 
not  a  map  is  there  recorded  covering  any  transfer  of 
lands  on  Staten  Island,  though  history  and  official 
books  of  record  show  a  steady  conveyance  of  real 
property. 

The  deeds  and  mortgages  recorded  during  that 


174        ENGLISH  CROWN  GRANTS 

period  fill  book  after  book,  but  no  maps  are  recorded 
accompanying  the  same. 

It  is  thought  by  many  that  there  were  some  maps 
prepared  and  filed  during  that  time  in  Richmond,  the 
County  Seat,  but  that  in  several  fires  which  occurred 
there  and  which  destroyed  many  valuable  records,  the 
maps  representing  that  period  of  time  were  con- 
sumed. 

Be  that  as  it  may,  the  fact  remains  that  no  maps 
representing  land  transfers  for  over  one  century  are 
now  of  record  in  the  County  Seat. 

An  examination  of  Staten  Island  deeds  recorded  at 
the  County  Seat  disclosed  a  very  curious  state  of 
facts.  The  description  in  a  deed  may  run  from  a 
"small  pile  of  stones,"  now  scattered,  to  an  "elm 
tree,"  now  destroyed.  It  then  may  take  a  turn  to  a 
"brook,"  the  name  of  which  is  lost  or  was  never  gen- 
erally known  or  preserved  of  record.  Then  the  de- 
scribed boundary  wanders,  perchance,  to  a  "salt 
meadow,"  said  on  the  record  to  belong  to  a  person 
named  therein  but  who,  upon  examination  of  Liber 
or  Book  of  Deeds  does  not  appear  as  an  owner  of 
record  of  any  real  estate  on  the  Island. 

The  description  in  a  deed  taken  at  random  from 
the  Richmond  County  Public  Records  runs  as  fol- 
lows : 

A  certain  party,  "an  Attorney  at  Law,"  purports 
to  sell  to  another  party,  a  "Doctor  of  Physic,"  a  cer- 
tain piece  of  land  "once  owned  by"  a  certain  named 
and  doubtlessly  then  highly  respected  female.  No 
description  by  "metes  and  bounds"  accompanies  this 
last  mentioned  deed.  No  public  record  shows  that 
the  said  "Attorney  at  Law"  ever  owned  it  or  had  any 


ENGLISH  CROWN  GRANTS         175 

right  to  sell  it.  The  nearest  approach  to  a  declared 
ownership  in  the  property  is  the  disingenuous  state- 
ment that  a  certain  female  "once  owned"  it,  but  no 
public  record  shows  such  ownership  on  her  part. 

The  lawyer  purported  to  sell  it  to  a  "Doctor  of 
Physic"  as  eighty  acres.  The  "Doctor  of  Physic" 
gave  a  deed  the  following  day  for  one  hundred  acres. 
The  plot  kept  expanding  on  the  records  by  systematic 
"accretions"  due  to  vivid  imaginations  or  cumulative 
cupidity  combined  with  "remarkable  descriptive  pow- 
ers," until  it  became  a  comely  estate.  First  it  ex- 
tended to  a  salt  meadow ;  at  the  next  turn  it  extended 
to  the  beach.  Following  that  it  absorbed  the  land  be- 
tween high  and  low  water  mark.  The  last  heard  of 
it  was  that  it  had  extended  out  to  sea,  and  submarine 
fashion  was  moving  out  along  the  bottom  of  the 
Great  Deep.     It  is  too  deep  for  us  to  fathom. 

Present  titles  (?)  to  that  property  rest  upon  an 
erstwhile  "lawyer"  and  a  "doctor  of  physic,"  buying 
and  selling  lands  said  to  have  belonged  to  another, 
while  the  records  fail  to  show  either  one  of  them  ever 
owned  any  portion  of  the  land  in  question. 

Is  it  strange  that  one  of  three  title  searchers  re- 
cently conferring  together  in  the  County  Seat,  after 
looking  up  the  record  of  still  another  piece  of  land  on 
Staten  Island,  remarked  in  desperation,  "Well,  be- 
tween the  three  of  us  we  ought  to  be  able  to  'dope' 
out  some  kind  of  a  title  to  this  piece  of  land." 

Why  does  such  a  situation  exist?  It  Is  Intolerable ! 
The  excellent  Title  Companies  represented  In  Rich- 
mond County  have  been  a  powerful  Influence  in  help- 
ing to  steady  public  confidence  and  have  greatly  aided 
real  estate  business  in  a  multitude  of  cases.     They 


176         ENGLISH  CROWN  GRANTS 

have  made  possible  sales  and  loans  that  otherwise 
would  not  have  been  realized.  Every  real  estate 
operator  and  every  Title  Company  conversant  with 
all  the  facts,  together  with  the  legally  constituted  pub- 
lic officials  in  Richmond,  fully  realize  the  deplorable 
conditions  existing  as  to  the  records  of  early  titles  on 
Staten  Island. 

The  English  Crown  owned  Staten  Island — every 
foot  of  it.  It  issued  a  series  of  Crown  Grants  thereof 
to  private  individuals  and  closed  out  all  of  the 
Crown's  ownership  in  Staten  Island — every  foot  of  it. 

Instead  of  "no  survey  having  been  made  of  Staten 
Island,"  a  complete  survey  of  the  Island  was  made 
by  the  English  Crown  and  the  official  map  thereof  is 
in  the  possession  of  and  is  owned  by  the  American 
Title  and  Trust  Company.  The  same  Company  has 
also  an  official  location  of  each  and  every  English 
Crown  Grant  shown  on  a  map  of  Staten  Island,  pre- 
pared by  official  surveyors.  It  has  also  an  official 
record  of  each  and  every  Grant,  showing  the  dates  of 
their  issue  and  other  essential  facts  affecting  the 
descent  or  non-descent  of  titles  therefrom.  It  has  also 
certified  copies  of  the  Grants  covering  lands  granted 
on  Staten  Island  by  the  English  Crown. 

These  facts  relate  to  every  square  foot  of  land  on 
Staten  Island  to  the  utmost  "bounds  and  limits  of 
Richmond  County."  The  information  covers  the 
seas,  bays  and  rivers  included  by  the  United  States 
Government,  the  State  of  New  Jersey  and  the  State 
of  New  York  within  the  defined  and  fixed  boundaries 
of  Richmond  County.  In  addition  to  the  above,  the 
American  Title  and  Trust  Company  has  many  other 
official  maps,  field  notes  and  historical  proofs  cover- 


ENGLISH  CROWN  GRANTS         177 

ing  Staten  Island  from  the  early  dawn  of  English 
Colonial  History  in  America  down  to  the  present 
time. 

Many  of  these  archives  have  never  seen  the  light 
of  publicity.  The  identity,  authenticity  and  official 
character  of  each,  however,  is  apparent  upon  its  face 
and  can  be  promptly  and  effectively  confirmed. 

These  invaluable  proofs  settle  once  and  for  all  the 
location  of  each  and  every  English  Crown  Grant  of 
lands  on  Staten  Island. 

There  is  not  now  a  single  building  lot  on  Staten 
Island  that  cannot  be  located  on  the  original  tract  of 
land  covered  by  the  English  Crown  Grant  to  which 
as  a  proposition  of  law  it  must  look  as  the  original 
source  of  its  title. 

These  proofs  cover  upland,  salt  meadows,  beaches, 
land  between  high  and  low  water  mark  and  lands  un- 
der the  sea,  bays  and  rivers,  to  the  bounds  and  limits 
of  Richmond  County. 

For  the  first  time  since  the  chaotic  conditions  fol- 
lowing the  American  Revolution,  it  should  be  possible 
to  clear  up  all  old  titles  to  lands  on  Staten  Isand  and 
to  properly  support  every  good  modem  title  by  estab- 
lishing it  upon  the  basis  of  the  Original  Crown  Grant 
from  which  it  descended.  To  this  definite  proposi- 
tion the  American  Title  and  Trust  Company  in  the 
Dupont  Building,  Wilmington,  Delaware,  and  the 
American  Title  and  Security  Company  of  Staten 
Island,  are  devoting  their  best  resources. 

These  two  Title  Companies  are  not  interested  in 
and  devote  no  time  or  attention  to  the  regular  lines  of 
title  searching  and  guaranteeing  done  by  the  Title 
Guarantee  and  Trust  Company,  the  Lawyers  Title 


178         ENGLISH  CROWN  GRANTS 

and  Trust  Company,  and  the  New  York  Title  and 
Mortgage  Company  of  New  York  City,  all  so  ably 
and  efficiently  represented  on  Staten  Island. 

These  two  American  Title  Companies  are,  how- 
ever, preparing  and  are  able  to  prove  the  Crown 
Grant  basis  to  any  and  all  titles  to  lands  on  Staten 
Island  where  the  source  of  present  titles  cannot  be 
traced  by  any  Title  Company  to  its  original  Crown 
Grant. 

This  information  will  remedy  the  defects  which 
for  more  than  a  century  have  harassed  property  hold- 
ers on  Staten  Island  and  caused  title  searching  to  fall 
short  of  perfecting  complete  chains  of  title  extending 
back  to  their  true  and  legitimate  fountain  head,  the 
English  Crown  Grants. 

The  well-informed  public  deplores  the  issuance  of 
thousands  of  restricted  and  conditional  policies  of  so- 
called  title  insurance  to  home  seekers  and  house 
builders  who  may  have  taken  defective  titles  for 
building  lots  under  the  delusion  that  they  were  receiv- 
ing a  complete  and  perfect  policy  of  title  insurance. 

A  policy  of  title  insurance  is  adversely  affected  by 
each  "exception"  endorsed  on  its  back  and  in  a  multi- 
tude of  instances  is  rendered  absolutely  valueless 
thereby. 

Among  the  many  "exceptions"  noted  on  the  back 
of  policies  of  title  insurance  issued  by  the  thousands 
on  Staten  Island  is  one  which  reads  substantially  as 
follows : 

"This  title  is  not  insured  as  against  any  facts 
"which  may  be  disclosed  upon  an  accurate  or 
"correct  survey,"  or  words  to  that  effect. 


ENGLISH  CROWN  GRANTS         179 

Without  intending  to  impugn  any  motives  but  giv- 
ing full  credit  to  the  caution  which  presumably  directs 
the  policy  of  conservative  title  companies,  we  ask  one 
pertinent  question: 

If  a  "correct  survey"  should  disclose  the 
"fact"  that  the  land  covered  by  the  policy  is  on 
the  Symes  Grant,  then  under  the  terms  of  the 
policy  the  insurance  would  be  void,  would  it  not? 

A  Title  Guarantee  Company  is  only  justified  in 
writing  a  policy  consistent  with  the  risk  it  assumes.  It 
must  In  the  very  nature  of  things  disavow  liability 
against  what  to  it  is  the  absolutely  unknown  danger 
which  clearly  threatens  it.  The  horror  of  it  is,  how- 
ever, that  innocent  purchasers  are  not  informed  by 
many  sellers  of  real  estate  as  to  the  limitations  hidden 
away  In  the  terms  of  such  title  Insurance  policies.  Se- 
rious risks  are  oft-times  actually  assumed  and  unques- 
tionably carried  by  the  one  who  Innocently  thinks  that 
the  title  to  his  home  Is  fully  and  completely  insured, 
and  for  which  he  pays  his  hard-earned  wages. 

To  what  extent  a  Title  Company  Is  bound  In 
morals  to  explain  to  Its  client  the  true  meaning  In  the 
restrictions  on  the  back  of  Its  title  Insurance  policies 
Is  not  for  us  to  determine. 

We  have  been  furthermore  creditably  Informed  by 
one  who  claims  to  have  been  a  party  to  the  conversa- 
tion, that  thousands  of  dead  are  being  burled  on 
Staten  Island  lands  the  present  title  record  to  which 
lands  is  held  by  a  corporation,  one  of  the  chief  officers 
of  which  stated  that  the  Company  owning  the  same 
could  not  satisfactorily  trace  back  Its  title. 

It  is  a  ghastly  statement  and  worthy  of  a  Ghoul ! 


i8o         ENGLISH  CROWN  GRANTS 

To  betray  the  poor  and  innocent  and  to  mislead 
them  into  accepting  defective  titles  and  paying  their 
money  for  the  same  is  inhuman,  but  for  private  gain 
to  knowingly,  wilfully  and  deceitfully  involve  the 
burial  place  of  the  dead  should  place  the  guilty  be- 
yond the  pale  of  human  association  I 

"Such,  if  admitted,  would  of  high  heaven  a 
"hades  make." 

The  American  Title  and  Trust  Company  recently 
examined  a  deed  given  to  a  home  seeker  on  Staten 
Island  by  a  so-called  Realty  Company.  The  deed 
was  drawn  in  such  a  manner  as  to  be  of  absolutely  no 
value  to  him  in  the  form  delivered.  This  was  no  act 
of  a  Title  Company,  but  of  an  alleged  Realty  Com- 
pany which  had  accepted  his  money  and  left  him  in 
a  desperate  position  as  to  the  actual  title  to  the  lands 
which  he  had  presumably  purchased. 

The  American  Title  and  Trust  Company  exposed 
the  fraud  and  offered  to  bring  to  Bar  without  costs  to 
the  victim  the  perpetrator  thereof,  if  the  transaction 
was  not  forthwith  remedied,  which  was  promptly 
done. 

But  why  do  not  Title  Insurance  Companies  make  a 
general  business  of  unqualifiedly  guaranteeing  the  title 
to  and  peaceable  possession  of  dock  properties  In 
Manhattan,  Brooklyn,  Jersey  City,  Hoboken,  Staten 
Island  and  elsewhere  on  tidal  waters? 

The  explanation  If  made  In  full  would  be  beyond 
the  scope  and  limits  of  this  work.  In  brief,  the  State 
controls  and  regulates  commerce  and  the  waters  of 
the  harbors  are  free. 

The  lands  under  water  and  between  high  and  low 


ENGLISH  CROWN  GRANTS         i8i 

water  mark  on  tidal  streams  are  subject  to  private 
ownership,  but  the  State  wisely  and  happily  has  the 
power  to  designate  where  docks  may  and  may  not  be 
built,  so  as  not  to  interfere  with  reasonable  naviga- 
tion of  the  waters.  It  may  regulate  their  length, 
width  and  form.  It  can  prescribe  of  what  they  shall 
be  constructed  and  their  distance  apart. 

These  are  rights  inherent  in  the  State  for  the  regu- 
lation of  commerce  and  for  public  safety.  Harbor 
regulations  may  change  from  time  to  time  as  the  in- 
terests of  commerce  may  dictate. 

Hence  to  unqualifiedly  warrant  a  quiet  and  peace- 
able possession  of  lands  subject  to  a  Governmental 
regulation  which  may  and  does  limit  and  control  the 
occupancy  thereof  and  the  use  to  which  it  may  be  put 
is  impracticable. 

Notwithstanding  this  fact,  among  the  most  valu- 
able lands  in  a  city,  we  find  its  shore  fronts.  Among 
the  safest  investments  we  find  dock  bonds. 

No  clearer,  cleaner  or  straighter  descent  of  title  to 
lands  can  be  found  than  the  dock  fronts  and  shore 
fronts  of  Staten  Island,  the  Governmental  regulation 
of  which  is  an  unmixed  blessing  to  all. 


ANALYSIS 

OF 

ONE    OF    THE    CROWN    GRANTS. 


English  Crown  Grant  to  Lancaster  Symes 

of 

Lands  on  Staten  Island,  New  York  City. 


"ANNE  BY  THE  GRACE  OF  GOD,  OF 
"GREAT  BRITTAIN,  FRANCE,  IRE- 
"LAND,  QUEEN,  DEFENDER  OF  THE 
"FAITH." 

"She  was  certainly  one  of  the  best  and  most 
"unblemished  Sovereigns  that  ever  sat  upon  the 
"throne  of  England  and  well  deserved  the  ex- 
"pressive  though  simple  epithet  of  'Good 
"Queen  Anne.'"  (Smollett,  History  of  Eng- 
land, Vol.  3,  p.  311;  The  Major  and  The 
Queen,  pp.  28,  29.) 

"TO  ALL  TO  WHOM  THESE  PRESENTS 
"SHALL  COME,  OR  MAY  CONCERN, 
"SENDETH  GREETINGS"— 

182 


ENGLISH  CROWN  GRANTS         183 

This  was  not  only  notice  to  her  realm  but  to 
all  the  world  at  large. 

"WHEN  AS  OUR  LOVING  SUBJECT,  LAN- 
"CASTER  SYMES,  BY  HIS  PETITION 
"PRESENTED  TO"— 

A  Royal  Grant  when  couched  in  strict  legal 
language  must  always  be  construed  favorably 
for  the  Crown  and  unfavorably  for  the  subject, 
when  uncertainty  of  language  or  expression  ob- 
scures or  renders  doubtful  its  exact  meaning. 

When  the  Grantor,  the  Crown,  used  the  term 
"our  loving  subject"  it  was  always  intended  to 
clearly  indicate  that  the  Crown  knew  that  it  was 
dealing  with  a  true,  faithful  and  affectionate 
subject  and  by  the  use  of  that  term  indicated 
that  the  consideration  due  such  an  one  should  at 
all  times  be  accorded  to  him.  The  conditions  of 
the  Grant  were  to  be  interpreted  in  the  terms  of 
loving  consideration  for  him  who  was  so  highly 
regarded  by  the  Sovereign. 

"OUR  RIGHT  TRUSTY  AND  WELL-BE- 
LOVED  COUZIN,  EDWARD,  VISCT 
CORNBURY  CAPT.  GENLL  AND  GOV.R 
IN  CHIEFE  OF  THE  PROVINCE  OF 
NEW  YORK  AND  TERRITORIES  DE- 
PENDING THEREON  IN  AMERICA 
AND  VICE  ADMIRALL  OF  THE  SAME 
&C  IN  COUNSELL"— 

Queen  Anne  and  Lord  Combury  were  cousins. 
Lancaster  Symes  was  held  in  very  high  per- 


1 84         ENGLISH  CROWN  GRANTS 

sonal  regard  by  the  Queen  and  was  Lord  Corn- 
bury's  most  intimate  and  truest  personal  friend. 
For  particulars  as  to  the  happy  relationship  and 
friendship  existing  between  this  trio  see  "The 
Major  and  the  Queen,"  pages  38,  39. 

"HATH  PRAYED  OUR  GRANT  AND  CON- 
FIRMATION FOR  ALL  AND  ANY  THE 
PIECES  AND  PARCELLS  OF  VACANT 
AND  UNAPPROPRIATED  LAND  AND 
MEADOW"— 

"The  vacant  and  unappropriated  land"  of 
the  realm  was  distinctively  and  admittedly  the 
property  of  the  Crown  and  could  be  granted  by 
it  under  English  common  law.  Staten  Island 
lands  were  also  vested  in  the  Crown  as  personal 
Crown  lands,  by  right  of  private  purchase  from 
the  Indians,  by  the  Duke  of  York. 

"ON  STATEN  ISLAND  IN  THE  COUNTY  OF 
RICHMOND,  THE  WHICH  PETITION 
WEE  BEING  WILLING  TO  GRANT,"— 

In  a  legal  sense,  an  island  is  never  legally 
defined  in  the  school  book  description  as  "a  body 
of  land  surrounded  by  water."  The  law  does 
not  recognize  any  proprietorship  in  water. 
Water  may  or  may  not  be  present  on  the  land. 
Staten  Island  extends  by  legal  definition,  to  the 
bounds  and  limits  of  Richmond  County. 

"Richmond  (County)  which  comprehends 
the  whole  of  Staten  Island."  (Gov.  Tryons 
Report  to  the  English  Crown.) 


ENGLISH  CROWN  GRANTS         185 

The  Grant  made  of  Manhattan  Island  was 
for  the  vacant  and  unappropriated  land  "on 
Manhattan  Island,"  which  carried  with  it  much 
of  the  bed  of  the  East  River.  No  notice  was 
taken  therein  of  the  latter  being  submerged  land. 

In  ejectment  to  recover  submerged  lands  in 
the  Great  South  Bay,  the  Bay  was  described  as 
being  "ON"  the  south  side  of  the  Island,  form- 
erly called  Long  Island." 

The  water  was  not  referred  to,  but  the  bot- 
tom of  the  Bay  was  held  to  have  been  conveyed. 

The  Grant  of  land  ON  Manhattan  Island  in- 
cluded land  under  water  in  the  East  River. 

The  Grant  of  land  ON  the  South  side  of 
Long  Island  included  the  lands  under  water  in 
the  Great  South  Bay. 

The  Grant  of  land  ON  Staten  Island  included 
the  lands  under  water  "to  the  bounds  and  limits 
of  Richmond  County." 

Sand  Bay  was  officially  described  in  Colonial 
days  as  "ON  Staten  Island."  (17 12.)  Sand 
Bay  was  again  officially  described  as  "ON  the 
Eastermost  part  of  Staten  Island."  (17 13.) 
A  Bay  is  not  upland  and  yet  it  is  ON  Staten 
Island. 

"Etymologically  ON  and  UPON  differ  in 
meaning."     (Webster.) 

This  Grant  does  not  limit  its  conveyance  to 
lands  UPON  Staten  Island,  but  to  lands  ON 
Staten  Island. 

Your  coat  is  ON  you  when  it  enwraps  your 
form. 


1 86         ENGLISH  CROWN  GRANTS 

The  barnacles  are  ON  the  hull  of  the  ship, 

whether  attached  to  its  sides  or  bottom. 

The  ring  is  ON  when  it  encircles  the  finger. 

"In  a  position,  state  or  adherance.  In  such  a 
position  as  to  cover,  surround  or  overspread." 
(Webster.) 

"KNOW   YEE   THAT   OF   OUR   ESPECIAL 
GRACE"— 

The  term  "especial  grace"  can  only  be  com- 
prehended in  the  light  of  the  true  meaning  of 
the  English  word  "Grace."  It  carries  "wealth 
of  an  exalted  and  noble  love."  Students  of  Eng- 
lish Common  Law  fully  understand  that  a 
Crown  Grant  made  out  of  the  most  exalted  im- 
pulse of  the  soul,  to  a  "loving  subject"  does  not 
legally  carry  narrowness  of  interpretation  but 
on  the  contrary  a  full,  free  and  generous  con- 
struction. 

This  is  clearly  stated  in  Blackstone's  Com- 
mentaries and  in  the  within  chapter  "The  New 
World  and  Crown  Grants." 

"CERTAIN  KNOWLEDGE"— 

The  expression  "certain  knowledge"  is  the 
Crown's  voluntary  and  gracious  way  of  relieving 
the  applicant  of  all  possible  charge  of  having 
misrepresented  the  facts.  It  was  as  if  the 
Sovereign  said  to  the  world,  "I  do  not  wish 
to  hear  a  word  about  or  against  this  application 


ENGLISH  CROWN  GRANTS         187 

or  applicant.    I  know  all  about  it  and  him.    I 
have  positive  and  sure  information." 


'AND  MEER  MOTION"— 

"Meer  motion,"  in  other  words  it  would 
properly  read,  "off  hand."  It  is  as  if  the  Crown 
had  said,  "Did  my  loving  subject  for  whom  I 
have  such  a  deep  and  pure  affection  petition  for 
these  lands  and  rights  ?  I  Grant  them  with  the 
'wave  of  a  hand.'  " 


"WEE  HAVE  GIVEN,  GRANTED,  RATIFIED 
AND  CONFIRMED  AND  IN  AND  BY 
THESE  PRESENTS  DOE  FOR  US  OUR 
HEIRS  AND  SUCCESSORS,  GIVE, 
GRANT,  RATIFYE  AND  CONFIRMS 
UNTO  THE  SAID  LANCASTER  SYMES, 
HIS  HEIRS  AND  ASSIGNS  FOREVER." 

The  Grant  was  made  by  the  Crown  to  Lancaster 
Symes  in  behalf  of, — 

First:        The  Crown. 

Second:  The  "heirs"  of  the  Crown.  The  Duke 
of  York  had  purchased  Staten  Island. 
It  became  annexed  to  the  Crown's  pri- 
vate Manor  of  East  Greenwich  in  the 
County  of  Kent,  England.  The  Crown 
had  children  who  were  heirs  of  the 
blood  or  body.  Hence  the  Crown  in 
view  of  its  personal  proprietorship  of 
Staten  Island  bound  its  "heirs"  to  the 


1 88         ENGLISH  CROWN  GRANTS 

Grant  to  Lancaster  Symes.  By  this  the 
Crown  admitted  its  personal  title. 
Third:  The  Crown  bound  its  "successors"  on 
the  throne.  This  was  notice  to  the 
world  that  no  Royal  successor  on  the 
throne  of  England  should  ever  reassert 
a  claim  to  the  lands  granted  by  the 
Queen  of  England,  but  especially  by  the 
Lady  of  the  Monor  of  East  Greenwich. 
This  provision  estoppes  the  State  of 
New  York. 

It  was  in  effect  a  Grant  by  the  Lady  of  the 
Manor  of  a  part  of  her  manorial  estate,  which 
Grant  was  confirmed  by  the  Crown,  the  Sov- 
ereign acting  in  a  dual  capacity.  The  Great 
Seal  of  the  Province  was  a  ratification  by  the 
people. 

The  State  of  New  York  subsequently  con- 
firmed this  Grant. 

The  Grant  was  not  simply  a  life  tenure  to 
Symes,  but  was  a  Grant  of  title  to  him  and  his 
"heirs  and  assigns  forever." 

"ALL  THE  BEFORE  MENCONED  PIECES 
AND  PARCELLS  OF  VACANT  AND  UN- 
APPROPRIATED LAND  AND  PREM- 
ISES AND  ALL  AND  SINGULAR  THE 
HEREDITAMENTS  AND  APPUTE- 
NANCES  THEREUNTO  BELONGING." 

"The  vacant  and  unappropriated  lands"  on 
Staten  Island  belonged  to  the  Crown  (Uplands, 
lands  between  high  and  low  water  mark,  and 


ENGLISH  CROWN  GRANTS         189 

lands  under  water  to  the  bounds  and  limits  of 
Richmond  County).  They  were  not  only 
granted,  but  the  hereditaments  and  appurte- 
nances also  "belonging"  thereto. 

First:  "The  hereditaments"  —  "Things 
capable  of  being  inherited." 

Second:  "The  appurtenances"  —  "Every- 
thing passes  which  is  necessary  to 
the  full  enjoymeit  thereof  and 
which  is  in  use  as  incident  or 
appurtenant  thereto." 

"WITHIN  THE  BOUNDS  AND  LIMITS 
ABOVE  IN  THESE  PRESENTS  MEN- 
CONED  AND  EXPRESSED." 

This  is  a  clear  reference  to  the  hereinbefore 
set  forth  expression  "in  the  County  of  Rich- 
mond." Legally  there  is  no  difference  In  force 
and  effect  between  "on  Staten  Island"  and  "in 
the  County  of  Richmond."  The  two  are  in- 
terchangeable terms, — the  County  of  Rich- 
mond and  Staten  Island  being  legally  co-exten- 
sive and  with  common  boundaries.  Staten  Is- 
land represents  the  land,  the  County  of  Rich- 
mond the  local  governmental  jurisdiction  there- 
over. One  is  material  the  other  is  political  and 
governmental.    They  are  co-extensive. 

"TOGETHER  WITH  ALL  AND  SINGULAR, 
THE  WOODS,  UNDERWOODS,  TREES, 
TIMBER,    FEEDINGS,    MEADOWS, 


I90        ENGLISH  CROWN  GRANTS 

MASHES,  SWAMPS,  POOLES,  PONDS, 
WATERS,  WATERCOURSES,  RIVERS, 
RIVOLETTS,  RUNS  AND  STREAMS  OF 
WATER,  BROOKS,  FFISHING  AND 
FFOWLING,  HUNTING,  HAWKING, 
MINES  AND  MINERALLS,  STANDING, 
GROWING  EYEING,  OR  BEING  OR  TO 
BE  HAD"— 

The  Crown  further  granted  "together  with 
all  and  singular  the 

"woods,  underwoods," 

According  to  Lord  Coke,  "a  grant  to  an- 
other of  all  his  woods  will  pass  not  only 
all  his  trees  but  the  land  on  which  they 
grow." 

"trees," 

Trees  are  a  part  of  the  real  estate,  while 
growing  and  before  they  are  severed  from 
the  freehold.  When  they  are  cut  down 
they  become  personal  property, 

"timber," 

Timber  trees  are  those  used  in  building 
and  in  mechanical  arts.  Timber  trees  con- 
stitute a  portion  of  the  realty. 


"ffcedings," 

These  are  pasturing  lands  where  cattle  and 


ENGLISH  CROWN  GRANTS         191 

herds  may  graze  and  from  which  fodder 
may  be  cut  and  taken. 


"meadows," 

These  consist  of  low  ground  adjacent  to 
streams,  tracts  of  low  or  level  land,  produc- 
ing grass  which  is  mowed  for  hay;  culti- 
vated land,  growing  grass  sowed  thereon; 
tillable,  mowing  or  grass  land.  The  term 
is  applied  to  the  tracts  which  lie  above  the 
shore  and  are  or  may  be  overflowed  by 
spring  and  extraordinary  tides  only  and 
yield  grasses  which  are  good  for  hay. 

"mashes," 

In  this  word  the  English  Crown  "dropped 
its  r."  Mashes  are  low  and  wet  ground, 
much  if  not  all  of  the  time  being  overflow- 
ed by  water. 


swamps, 

Low  lying  land  covered  more  or  less  with 
water, — bogs. 

"pooles," 

A  small  lake  of  standing  water.  "By  the 
grant  of  a  pool,  both  the  land  and  the 
water  will  pass.  Undoubtedly  the  right  to 
fish  will  be  acquired  by  such  a  grant." 


192         ENGLISH  CROWN  GRANTS 

"ponds,"  "pools,"  "waters," 

A  pool  of  water  or  a  stream  of  water  is 
considered  as  part  of  the  land.  A  mere 
grant  of  water  passes  a  fishery. 

"watercourses," 

This  term  is  applied  to  the  flow  or  move- 
ment of  the  water  in  rivers,  creeks,  and 
other  streams. 

"In  a  legal  sense  property  in  a  water  course 
is  comprehended  under  the  general  name  of 
land."   (Bouvier — "watercourse.") 

"rivers," 

A  natural  stream  of  water  flowing  between 
banks.  The  only  rivers  within  the  "bounds 
and  limits  of  Richmond  County"  are  the 
Hudson,  Kill  von  Kull,  Arthur  Kill  and 
Raritan  Bay,  which  is  the  confluent  of  the 
three  rivers. 


"rivoletts,"    "runs    and    streams    of   water, 
"brooks," 

This  description  comprehends  every  stream 
of  running  water  "in  the  County  of  Rich- 
mond." 

"ffishing," 

By  the  common  law  of  England  the  fish- 
eries in  all  the  navigable  waters  of  the 


ENGLISH  CROWN  GRANTS         193 

realm  belonged  to  the  Crown.  "An  indi- 
vidual claiming  an  exclusive  fishery  in  such 
waters  must  show  it  by  Grant  or  Prescrip- 
tion." 

"fowling,  hunting,  hawking," 

These  rights  and  privileges  theretofore  pos- 
sessed by  the  Crown  as  a  Royal  preroga- 
tive or  as  the  private  owner  under  manorial 
rights  were  conveyed  by  the  Crown  to  Lan- 
caster Symes. 

"mines  and  minerals," 

Gold  and  silver  mines  (as  later  referred  to 
herein)  were  held  under  the  common  law 
of  England  as  Royal  mines  and  belonged  to 
the  Crown.  It  was  an  open  question  where 
mines,  producing  minerals  of  the  baser  sort, 
contained  mixed  in  such  ore,  gold  or  silver 
of  a  value  equal  to  or  exceeding  the  value 
of  the  baser  metals,  whether  the  same  were 
not  of  Royal  value  and  belonged  to  the 
Crown.  To  remedy  this  uncertainty  laws 
were  passed  by  Parliament  (in  the  Statutes 
I  William  and  Mary  st  I,  c  30,  and  8  w. 
and  M.,  c.  6).  Under  these  Statutes  the 
usual  gold  bearing  ores, — copper,  tin,  lead 
and  iron,  were  exempt  from  all  claims  by 
the  Crown  as  Royal  mines  and  as  its  ex- 
clusive property  on  condition,  however, 
that  the  King  should  have  the  right  to  pur- 
chase such  products  of  the  mines  at  prices 


194         ENGLISH  CROWN  GRANTS 

stated  in  the  act.  This  provision  made  by 
Parliament  was  accepted  by  Crown  and 
people  as  just  and  equitable. 

The  "mines  and  minerals"  on  Staten 
Island  were  owned  by  the  Crown  through 
the  purchase  thereof  by  the  Duke  of  York. 
Under  the  Grant  to  Lancaster  Symes  the 
Crown  conveyed  to  him  all  mining  rights, 
excepting  those  of  gold  and  silver,  in  the 
lands  conveyed  under  the  said  Grant.  Le- 
gend has  it,  though  sharply  testing  human 
credulity,  that  some  gold  was  at  one  time 
mined  on  Staten  Island  near  Richmond. 
Considerable  iron  ore,  large  quantities  of 
clay  for  making  brick,  and  a  certain  grade 
of  kaolin  have  been  mined  on  Staten  Island. 

"standing,  growing,  lyeing,  or  being  or  to  be 
"had," 

This  term  covered  and  included  timber  and 
trees  together  with  any  and  all  of  the  afore- 
said natural  growths  and  earth  deposits 
therein  contained  or  existing  thereon. 

"USED    AND   ENJOYED    IN    THEM    THE 
BOUNDS  AND  LIMITS  AFORESAID." 

This  provision  specifically  grants  all  rights  of 
use  and  enjoyment  at  the  time  possessed  by  the 
Crown  within  "the  bounds  and  Hmitts"  of  Rich- 
mond County.  The  Crown  had  thereinbefore 
granted  the  title  to  the  described  lands  and  in 
this  latter  clause   of  the   Grant  gave  to  the 


ENGLISH  CROWN  GRANTS         195 

Grantee  the  use  and  enjoyment  thereof  to  the 
bounds  and  limits  of  Richmond  County 

(a)  of  every  class  of  timbered  growth 
thereon. 

(b)  of  all  agricultural  soil  thereon. 

(c)  of  all  lands  thereon  of  a  marshy  na- 
ture, towit:  occasionly  submerged  lands, 
semi-submerged  lands  on  which  vegeta- 
tion grows  and  appears  above  the  sur- 
face of  the  water 

(d)  of  all  pools  with  unknown  outlets, 
ponds  of  like  character  or  with  outlets. 
Lakes  of  every  kind  and  character 
which  are  comprehended  in  the  forego- 
ing, in  brooks  that  run,  rivolets  that 
flow,  rivers  that  course  their  way, 
water-courses,  the  characteristics  of 
which  are  included  in  the  name  thereof. 
Then  lacking  descriptive  power  as  to 
further  details  the  comprehensive 
words  are  added  "runs  and  streams  of 
water."  All  such  are  to  be  "used  and 
enjoyed"  by  the  Grantee,  his  heirs  and 
assigns  forever.  The  sporting  strain 
in  the  English  blood  is  further  evi- 
denced by  the  additional  Grant  of  the 
fishing  (which  legally  includes  shell 
and  swimming  fish)  rights,  fowling 
rights  and  hunting  rights,  on  all  classes 
of  land  referred  to  and  on  and  in  the 
standing,  running,  flowing  and  tidal 
waters  legally  included  in  the  Encyclo- 


196         ENGLISH  CROWN  GRANTS 

pedically  described  waters.  But  where 
are  all  these  rights  and  privileges  to  be 
enjoyed  and  to  what  bounds  do  the 
lands  and  waters  extend?  The  Grant 
says  "In  them  the  bounds  and  limits 
aforesaid."  The  ultra-narrow  con- 
structionist who,  legally  unadvised 
might  say  "on  Staten  Island"  would 
overlook  the  words  "in  them  the 
bounds  and  limits  aforesaid."  The 
possibility  of  such  a  construction  abso- 
lutely disappears  in  face  of  the  fact  that 
the  County  of  Richmond  referred  to 
therein  had  been  delimited  and  its 
boundaries  fixed  by  Statute. 

That  the  Grant  was  intended  to  cov- 
er all  lands  under  water  in  Richmond 
County  is  clear  when  we  remember  that 
the  bounds  and  limits  of  Staten  Island 
at  every  point  are  in  the  Rivers  and  to 
reach  the  bounds  and  limits  the  lands 
must  of  necessity  extend  at  every  point 
under  water. 

The  word  ON  as  it  appears  in  the 
term  "on  Staten  Island,"  has  been  ex- 
haustively commented  on  in  this  chap- 
ter. 

"AND  ALL  OTHER  PROFITTS,  BENEFITTS, 
ADVANTAGES,  HEREDITAMENTS 
AND  APPURTENANCES  WHATSO- 
EVER UNTO  THE  SD  PEICES  AND 
PARCELLS  OF  LAND  AND  PREMISES 


ENGLISH  CROWN  GRANTS         197 

BELONGING  OR  IN  ANY  WISE  APPUR- 
TEYING  (EXCEPT  AND  ALWAYS  RE- 
SERVED OUT  OF  THIS  OUR  PRESENT 
GRANT  ALL  GOLD  AND  SILVER 
MINES)." 

It  would  appear  that  the  rights  and  powers 
granted  therein  by  the  Crown,  prior  to  this  lat- 
ter clause  were  sufficiently  couched  in  broadest 
language.  It,  however,  adds  "all  other  profits, 
benefits,  advantages,  hereditaments  and  appur- 
tenances whatsoever."  The  Crown  fearing 
that  even  that  term  might  lack  sufficiency  then 
added,  "in  any  wise  appurtaining." 

(We  note  the  exception  of  "gold  and  silver 
mines  therefrom.) 

"TO  HAVE  AND  TO  HOLD  THE  SAID 
PEICES  AND  PARCELLS  OF  LAND 
AND  PREMISES  WITH  THEIR  APPUR- 
TENANCES HEREBY  GRANTED  MEN- 
CONED  OR  INTENDED  TO  BE  HERE- 
BY GRANTED  AS  AFORSAID  (EXCEPT 
BEFORE  EXCEPTED)  UNTO  THE  SAID 
LANCASTER  SYMES,  HIS  HEIRS  AND 
ASSIGNS  FOREVER  TO  THE  ONLY 
PROPER  USE  AND  BEHOOF  OF  THE 
SD  LANCASTER  SYMES  HIS  HEIRS 
AND  ASSIGNS  FOREVER." 

This  paragraph  in  the  light  of  the  preceding 
terms  needs  no  additional  comment,  excepting 
however  that  a  broad  and  generous  construction 
is  required  to  be  placed  upon  this  Grant,  by  the 


198         ENGLISH  CROWN  GRANTS 

use  of  the  words  "or  intended  to  be  hereby 
granted."  The  Crown  then  suddenly  puts  a 
final  and  arbitrary  restriction  upon  the  exercise 
of  the  rights  and  privileges  hereinbefore  de- 
scribed, by  absolutely  limiting  the  same  "to  the 
only  proper  use  and  behoofe  of  the  said  Lan- 
caster Sjnnes  his  heirs  and  assigns  forever." 

"TO  BE  HOLDIN  OF  US  OUR  HEIRS  AND 
SUCCESSORS  IN  FFREE  AND  COM- 
MON SOCCAGE." 

The  Crown  Grants  to  lands  on  Staten  Island 
provided  that  the  title  to  such  lands  should  be 
held  "in  free  and  common  soccage."  Some 
authorities  claim  that  this  word  is  derived  from 
the  old  Saxon  word  "soke,"  meaning  a  "Plough- 
share." If  so,  it  signifies  that  the  Grantee  who 
received  a  Grant  of  land  from  the  Crown  ob- 
tained his  title  under  the  condition  that  he  would 
perform  certain  (or  sure)  services;  hence  the 
legal  maxim,  "Soccage  Is  the  same  as  service  of 
the  plough." 

Pel.  Leg.  Max. — also  Coke  Litt.  86a. 

Blackstone  and  others  have  held  that  the 
word  "soccage"  is  derived  from  the  word  "soc," 
which  meant  "free"  or  "privileged."  This  con- 
clusion is  consistent  with  the  fact  that  any  one 
who  held  "title  In  soccage"  under  a  Crown 
Grant,  while  required  to  perform  certain  or 
definite  services  to  the  Crown  as  a  consideration 
for  holding  such  title,  was  not  required  under 


ENGLISH  CROWN  GRANTS         199 

the  terms  of  the  Grant  to  perform  military  serv- 
ice. 

The  meaning  of  the  term,  therefore  as  used 
in  the  Staten  Island  Crown  Grants  is  that  the 
Grantees,  as  long  as  they  held  title  to  their 
lands,  were  required  to  perform  the  definite 
services  provided  for  in  the  Grants,  free  from 
military  duty.  The  failure  of  such  performance 
permitted  re-entry  upon  and  re-possession  of  the 
land  by  the  Crown. 

In  the  year  1 830,  the  State  of  New  York,  by 
special  enactment,  prohibited  any  further  issue 
of  any  Grants  of  lands  in  the  State  of  New 
York,  the  tenure  of  which  was  to  be  held  on  a 
soccage  basis. 

"AS  OF  OUR  MANOR  OF  EAST  GREEN- 
WICH IN  THE  COUNTY  OF  KENT 
WITHIN  THE  REALME  OF  ENGLAND 
YEILDING,  RENDRING  AND  PAYING 
THEREFORE  YEARLY  AND  EVERY 
YEAR  FROM  HENCEFORTH  FOREVER 
UNTO  US  OUR  HEIRS  AND  SUCCES- 
SORS ATT  OUR  CUSTOME  HOUSE  ATT 
NEW  YORKE  TO  OUR  COLLER  RE- 
CEIVR  GENLL  THEREFORE  THE 
TIME  BEING  ATT  OR  UPON  THE 
FEAST  DAY  OF  THE  ANNUNCIATION 
OF  OUR  BLESSED  VIRGIN  MARY 
(COMMONLY  CALLED  LADY  DAY) 
THE  RENT  OR  SUME  OF  SIX  SHILL- 
INGS CEINT  MONEY  OF  NEW  YORK 
IN  LIEU  AND  STEAD  OF  ALL  OTHER 


200        ENGLISH  CROWN  GRANTS 

RENTS,  DUTYS,  SERVICES,  DUES  AND 
DEMANDS  WHATSOEVER." 

We  now  find  that  while  the  Grant  conveyed 
all  the  Crown's  title,  rights  and  privileges  (ex- 
cepting gold  and  silver  mining) ,  the  Grant  has 
a  dual  character.  That  is — the  Crown  acted 
in  a  dual  capacity.  The  Queen  made  the  Grant 
with  all  her  Royal  authority  but  the  same  per- 
son, Anne,  Lady  of  the  Manor  of  East  Green- 
wich, to  which  Manor  Staten  Island  was  attach- 
ed, made  the  Grant  as  from  that  Manor  and 
required  that  the  accounting  should  be  made 
through  the  New  York  Custom  House  to  the 
Manor  House  in  East  Greenwich  in  the  County 
of  Kent,  England. 

(See  Chapter  herein  entitled  "Manor  of  East 
Greenwich  and  Crown  Grants.") 

"IN  TESTIMONY  WHEREON  WEE  HAVE 
CAUSED  THESE  OUR  LETTERS  TO  BE 
MADE  PATTENTS  AND  THE  SEALE 
OF  OUR  SAID  PROVINCE  OF  NEW 
YORK  TO  OUR  SD  LETTERS,  PA- 
TTENTS TO  BE  AFFIXED  AND 
THE  SAME  TO  BE  RECORDED  IN  TH 
SECRYR  OF  OUR  SAID  PROVINCE. 


WITNESS  OUR  RIGHT,  TRUSTY  AND 
WELL  BELOVED  COUZIN  EDWD  VIS- 
COT  CORNBURY  CAPT  GENLL  &  GOVR 
IN  CHIEFE  IN  AND  OUT  THEREON 
PROVINCE  OF  NEW  YORK  AFORESD 


ENGLISH  CROWN  GRANTS         201 

AND  TERRITORIES  DEPENDING 
THEREON  IN  AMERICA  AND  VICE 
ADMIRAL  OF  THE  SAME  &C.  IN 
COUNSEL  ATT  OUR  OWN  FORT  ATT 
NEW  YORK  THE  TWENTY  SEVENTH 
DAY  OF  OCTOBER  IN  THE  SEVENTH 
YEAR  OF  OUR  REIGN  ANNY  DOMINI, 
1708." 

The  Royal  Seal  carved  in  hard  wood  was  pend- 
ant from  the  Grant. 

The  Seal  of  the  Province  of  New  York  was 
also  attached  to  the  Grant. 

"Words  are  not  to  be  looked  at  so  much  as 
"the  cause  and  nature  of  the  thing,  since  the 
"intention  of  the  contracting  parties  may  appear 
"from  those  rather  than  from  words." 

(Calvinus  Lex.) 

"It  seems,  however,  the  provisions  of  Colo- 
"nial  charters  are  to  be  liberally  construed, 
"whenever  necessary  to  accomplish  the  pur- 
"pose  of  the  Grant." 

(Delancey  vs.  Piepgras,  138  N.  Y.,  26.) 

"English  political  economy  and  English  popu- 
"lar  notions  are  very  deeply  and  extensively 
"pervaded  by  the  assumption  that  all  property 
"has  been  acquired  through  an  original  trans- 
"action  of  purchase  and  that  whatever  be  the 
"disadvantages  of  the  form  it  takes  they  were 
"nal  sale." 
"allowed  for  in  the  consideration  for  the  origi- 


202         ENGLISH  CROWN  GRANTS 

(Maine,   Early   Laws    and    Customs,    page 
325-) 

"By  coming  to  the  Crown  they  became  grant- 
able  in  that  way  to  the  subject." 

(Burke,  Dormant  Claims  of  the  Church.) 


QUIT  RENTS 

AND 

CROWN  GRANTS 

The  King's  Grants  were  matters  of  public  record. 
No  freehold  may  be  given  to  a  King,  nor  derived 
from  him  but  by  matter  of  record.  All  Grants  made 
by  the  King  must  first  pass  through  the  hands  of 
several  regular  subordinate  officers  appointed  for 
that  purpose  whose  duty  it  was  to  transcribe  and  en- 
roll the  same.  The  paramount  duty  of  these  subor- 
dinate officers  is  to  closely  examine  and  inspect  the 
form,  nature  and  character  of  such  Grants  and  to 
inform  the  King  if  anything  contained  therein  is 
improper  or  unlawful  to  be  granted.  Such  Grants 
are  contained  in  charters  or  letters  patent,  that  is, 
open  letters.  They  are  so  called,  because  they  arc 
not  sealed  up,  but  are  exposed  to  open  view,  with  the 
Great  Seal  pending  at  the  bottom,  and  are  usually 
directed  or  addressed  by  the  King  to  all  his  subjects 
at  large. 

A  Grant  or  letters  patent  must  first  pass  by  Bill, 
prepared  by  the  Attorney  General,  pursuant  to  a  war- 
rant from  the  Crown.  It  is  then  subscribed  at  the 
top,  with  the  King's  own  sign  manual  and  sealed  with 
his  privy-signet,  which  is  always  held  in  the  custody 
of  the  principal  Secretary  of  State.  At  times,  Grants 
immediately  pass  under  the  Great  Seal,  in  which  case 

203 


204         ENGLISH  CROWN  GRANTS 

the  patent  is  subscribed  in  the  following  words.  "Per 
Ipsum  Regem,"  by  the  King  himself.  Certain  Grants 
of  minor  importance  are  issued  with  less  ceremony, 
but  always  with  care,  caution  and  circumspection. 

A  Crown  Grant  issued  at  the  petition  of  the 
Grantee,  is  construed  most  favorably  for  the  Crown 
and  against  the  Grantee,  whereas  a  Grant  made  by  a 
subject  to  another  citizen,  is  construed  strongly 
against  the  Grantor. 

To  overcome  this  legal  presumption  in  favor  of 
the  Crown  as  against  the  Grantee,  the  Crown  at 
times  adopted  a  phrase  asserting  the  exercise  "of 
special  Grace,"  "certain  knowledge"  and  "mere  mo- 
tion" on  the  part  of  the  Crown.  In  making  a  Grant 
expressing  clemency,  generosity  and  good  will  on  the 
part  of  the  Crown  toward  the  Grantee,  the  Crown 
imparted  to  the  construction  of  the  Grant  a  liberal 
and  generous  interpretation  in  behalf  of  the  Grantee. 

(The   foregoing  paragraph   condensed   and 
adopted  from  Blackstone,  Vol.  2,  pages  346, 

347-) 

The  gracious  attitude  of  Queen  Anne  towards  Lan- 
caster Symes  is  evidenced  in  the  final  Grant  of  lands 
on  Staten  Island,  made  to  him  by  the  Crown,  as  in- 
dicated in  the  following  expressions  from  the  Crown 
Grant  issued  to  him : 

"Our  loving  subject  Lancaster  Symes," — "Know 
"yee  that  of  our  Especial  Grace  certain  knowl- 
"edge  and  meer  motion  wee  have  given  granted 
"etc.,  unto  the  said  Lancaster  Symes  his  heirs 
"and  assigns  forever." 


ENGLISH  CROWN  GRANTS         205 

This  form  of  language  used  by  the  Crown  in  the 
Symes  Grant  gave  to  it  the  broadest  construction 
under  common  law. 

Digby,  in  his  History  of  the  Law  of  Real  Prop- 
erty, page  34,  states  that, 

"by  the  conquest,  King  William  (of  Nor- 
"mandy)  succeeded  to  all  of  the  rights  of  the 
"Anglo  Saxon  Kings.  The  rights  over  the 
"land  which  they  had  became  his." 
"The  great  possessions  held  by  them  in  their 
"private  capacity  devolved  upon  William,  and 
"no  distinction  any  longer  existed  between  the 
"King's  ownership  of  lands  in  his  private  capa- 
"city  and  his  suzerainty  over  the  folkland  as 
"chief  of  the  nation." 

"all  alike  became  'terra  regis.'  "  (king's 
"land.) 

We  find  in  Freeman's  "Constitutional  History," 
Vol.  5,  page  787: 

"It  was  necessary  at  the  time  of  Doomsday,  to 
"a  good  title  to  any  land,  except  that  held  by 
"ecclesiastical  bodies,  that  the  tenant  should  be 
"able  to  adduce  evidence  of  a  Grant,  re-grant 
"or  confirmation  by  William." 

This  theory  of  tracing  real  estate  back  to  English 
Crown  Grants  has  been  a  recognized  principle  in 
English  Common  Law  from  the  time  of  the  "Dooms- 
day Book"  and  the  same  principle  became  funda- 


2o6         ENGLISH  CROWN  GRANTS 

mental  in  America  when  English  Common  Law  was 
brought  to  the  Colonies  upon  the  establishment  there- 
in of  English  sovereignty. 

It  is  in  accordance  with  this  theory  of  Common 
Law,  established  in  England  and  adopted  in  America, 
that  all  titles  to  land  on  Staten  Island  must  find  their 
source  in  an  English  Crown  Grant. 

The  Grants  made  by  the  English  Crown  for  lands 
on  Staten  Island  were  in  fact  deeds  which  passed  the 
title  to  the  Grantee.  They  were  issued  subject  to  the 
annual  payment  of  quit-rents  (meaning  quit-the- 
rents) .  In  the  event  of  non-payment  of  such  rentals, 
the  right  of  re-entry  upon  and  re-possession  of  such 
lands  so  conveyed  was  retained  and  possessed  by  the 
English  sovereign. 

This  form  of  deed  is  now  substantially  obsolete  in 
this  country.  It  has  been  proscribed  by  nearly  all, 
if  not  all,  of  our  states. 

The  quit-rents  provided  to  be  paid  under  the  terms 
of  the  Staten  Island  Grants  were  payable  at  the  Cus- 
tom House  in  the  City  of  New  York  and  on  account 
of  the  rent  roll  of  the  Manor  of  East  Greenwich  in 
the  County  of  Kent,  England. 

This  arrangement  for  the  collection  of  the  quit- 
rents  proved  to  be  extremely  unsatisfactory.  His- 
torians disagree  as  to  the  proportion  of  the  rentals 
collected  from  Staten  Island,  which  eventually 
reached  the  Manor  House  of  East  Greenwich.  Some 
authorities  claim  that  "it  was  as  much  as  twenty  per 
cent'' 

In  addition  to  the  difficulties,  incident  to  distance, 
connected  with  the  collection  of  quit-rents,  unbusi- 
nesslike methods  on  the  part  of  the  Grantees  pre- 


ENGLISH  CROWN  GRANTS         207^ 

dominated.  Many  of  them  defaulted  in  payments, 
much  of  the  lands  granted  were  abandoned  by  the 
Grantees  without  notice  to  the  Crown.  Others  of  the 
Grants  were  not  recorded,  while  a  number  of  them 
were  not  patented. 

The  official  records  clearly  show  that  many  of  the 
Grantees  applied  for  their  Grants,  and  upon  secur- 
ing the  issue  thereof,  failed  to  record  the  same. 
Others  recorded  their  Grants  but  paid  no  quit-rents. 
There  were  other  Grants  applied  for,  issued,  but  were 
not  confirmed.  We  even  find  at  this  day  modern 
titles  claiming  unconfirmed  Grants  and  unpatented 
lands  as  a  source  from  which  their  so-called  rights 
descend. 

"In  the  absence  of  a  statute,  a  ground  rent  is  not 
within  any  statute  of  limitations  nor  is  there  any  pre- 
sumption that  it  has  ceased  to  exist  from  the  mere 
lapse  of  time  without  payment  of  the  rent  or  from 
mere  delay  of  the  owner  of  the  ground  rent  in  de- 
manding it."     (20  Cyc.  1379.) 

It  has  been  held  that  in  the  event  of  the  non-pay- 
ment of  quit-rents  for  a  period  of  twenty  years,  and 
no  demand  having  been  made  by  the  Grantor  for 
such  payment  within  said  consecutive  years  the  Court 
will  presume  that  such  quit-rents  have  been  paid, 
but  proof  to  the  contrary  is  admissable.  Such  atti- 
tude of  the  Court  will  in  no  wise  release  the  Grantee 
from  the  payment  of  prior  quit-rents  which  remain 
unpaid.  The  non-payment  of  quit-rents  for  a  period 
of  twenty  years  does  not  give  adverse  possession  to 
the  title  as  against  the  Grantor.  Any  and  all  parties 
laying  claim  to  title  under  a  Grant  conveying  such 
title  subject  to  a  quit-rent  (which  runs  with  the  land) 


208         ENGLISH  CROWN  GRANTS 

cannot  claim  adverse  possession  against  the  Grantor 
nor  be  relieved  from  liability  to  pay  such  quit-rents 
except  by  act  of  the  Grantor.  Any  Grants  made  sub- 
sequent to  1830  and  subject  to  quit-rents  are  void  in 
the  State  of  New  York,  by  special  enactment  of  the 
State  Legislature.  Crown  Grants  made  prior  thereto 
are  unaffected  thereby. 

In  the  years  from  1814  to  1816  inclusive  there 
were  several  acts  passed  by  the  New  York  Legisla- 
ture contemplating  and  providing  for  the  commuta- 
tion of  quit-rents  then  due  or  to  become  payable  to 
the  State.  Such  commutation  was  to  be  conditioned 
upon  election  on  the  part  of  the  Grantees  to  com- 
mute the  same.  Pursuant  thereto,  the  quit-rents 
under  the  Crown  Grant  to  Lancaster  Symes  were 
commuted  and  paid  in  full  forever,  as  is  shown  in 
the  records  of  the  Comptroller's  office  at  Albany. 

"The  effect  of  the  commutation  of  the  quit- 
rents  is  the  same  upon  the  rights  of  the  parties 
as  if  the  people  had  made  a  new  grant  of  the 
patent  without  reservation." 

(People  vs.  Renssellaer,  9  N.  Y.,  291,  328.) 

"People  may  not  bring  ejectment  after  com- 
muting quit-rents." 

(People  vs.  van  Renssellaer,  9  N.  Y.,  292.) 

Under  this  and  like  decisions  the  State  of  New 
York  representing  the  people,  has  no  standing  In  the 
Courts  upon  which  it  could  base  an  action  for  the 
nullification  or  cancellation  of  the  English  Crown 


ENGLISH  CROWN  GRANTS         209 

Grant  to  Lancaster  Symes.  It  has  evidenced  no  dis- 
position so  to  do,  and  is  barred  from  pleading  that 
the  Crown  Grant  to  Lancaster  Symes  is  null  and  void. 
On  the  contrary,  the  State  of  New  York  has  ad- 
mitted the  Grant  and  denied  title  to  any  land  in  it- 
self on  Staten  Island. 


MANOR  OF  EAST  GREENWICH 

AND 

CROWN  GRANTS 

Students  of  American  Colonial  History  have  been 
much  interested  in  the  fact  that  substantially  all  of 
the  English  Colonial  charters  have  not  been  directly 
issued  "as  of"  the  English  Crown.  In  nearly  all  such 
charters  it  is  provided  that  while  the  land  so  granted 
is  to  be  held  as  from  the  Crown  of  England  it  is,  how- 
ever, to  be  held  "as  of  the  Manor  of  East  Greenwich 
in  the  County  of  Kent,  in  free  and  common  soccage 
and  not  in  capite  or  of  knight  service?"  It  is  a  perti- 
nent inquiry,  "Why  should  the  land  granted  in  the 
New  World,  by  the  English  Sovereign  be  held  from 
some  Manor  and  not  from  the  Crown  direct?"  Why 
was  it  to  be  held  in  free  and  common  soccage  and  not 
by  knight  service  ?  Why  should  the  Manor  of  East 
Greenwich  have  been  nearly  always  selected  in  pref- 
erence to  other  Royal  Manors?"  Above  all,  the 
one  inquiry  is  of  paramount  importance — why  should 
Colonial  Charters  of  various  kinds  and  why  should 
Colonial  Grants  to  lands  in  America  be  held  as  of  a 
Royal  Manor  or  Manors  of  which  the  King  was 
"the  Lord  of  the  Manor,"  rather  than  directly  from 
the  Sovereign  of  England?  If  there  was  no  legal 
significance  in  this  arrangement,  why  were  not  some 
of  these  Grants  or  Charters  held  as  of  Westminster, 

210   , 


ENGLISH  CROWN  GRANTS         211 

one  of  the  Crown  residences,  with  its  full,  complete 
and  efficient  administrative  force?     The  answer  is: 

"Westminster  was  not  a  Manor." 

The  Manor  of  East  Greenwich  and  Hundred 
of  Blackheath  in  the  County  of  Kent,  England, 
situated  about  four  miles  from  London  Bridge,  em- 
braced among  other  lands  what  is  now  Greenwich, 
with  its  Royal  Observatory  and  Naval  Hospital. 
The  old  palace  was  known  as  the  "Greenwich 
House,"  and  was  a  favorite  royal  residence  as  early 
as  1300  A.  D. 

The  title  to  the  Manor  of  East  Greenwich,  with 
its  manorial  rights  and  privileges,  has  been  at  times 
held  by  various  English  Sovereigns  as  a  part  or  por- 
tion of  their  personal  Crown  lands  and  at  other  times 
by  Grantees  of  the  Crown  outside  of  the  line  of  royal 
descent. 

Henry  V  granted  it  to  Thomas  Beauford,  the 
Duke  of  Exeter,  from  whom  it  passed  as  a  manorial 
estate  to  Humphrey  the  Duke  of  Gloucester.  The 
latter  greatly  improved  and  beautified  the  property 
and  named  it  "Placentia."  At  his  death  in  1447  it 
was  acquired  by  the  then  reigning  King  and  was 
again  added  to  the  Crown's  private  estate. 

In  this  palace  was  born  Henry  VIII.  It  was  the 
birth  place  of  both  Queen  Mary  and  Queen  Eliza- 
beth and  under  its  roof  King  Edward  VI  died. 

The  Manor  House  was  enlarged  by  Edward  IV, 
also  by  Henry  VIII,  who  made  it  one  of  his  favorite 
residences.  James  I  added  to  it  and  Charles  I 
erected  the  "Queen  House"  adjacent  to  it  for  Hen- 
rietta Maria. 


212         ENGLISH  CROWN  GRANTS 

At  the  time  of  the  English  Revolution  the  Pro- 
tector appropriated  to  his  own  use  this  Manor  with 
other  personal  Crown  estates  and  private  palaces  of 
the  Crown,  but  it  was  returned  upon  the  restoration 
of  Charles  II. 

Upon  the  acquisition  of  this  Manor  by  Charles 
II,  what  was  left  of  the  historic  Manor  House  with 
its  improvements,  was  demolished  by  the  King  and  a 
building  which  now  constitutes  the  West  wing  of 
the  Naval  Hospital  was  erected  as  one  unit  of  a  very 
elaborate  design  contemplating  a  royal  residence  of 
great  splendor.  The  plan  was  not  carried  out  but 
the  building  so  erected  was  occasionally  used  by  that 
King  as  a  residence. 

The  building  so  constructed  was  granted  by  King 
William  and  Queen  Mary  at  the  suggestion  of  the 
latter,  as  a  royal  gift,  for  a  home  for  disabled  sailors 
of  the  Royal  Navy.  It  was  a  personal  endowment 
accompanied  by  a  gift  of  two  thousand  pounds  from 
the  private  purse  of  the  Royal  benefactors. 

"On  the  restoration  of  Charles  II  in  1660  the 
Manor  (East  Greenwich)  and  those  demesnes,  un- 
demised  by  the  Crown  returned  to  the  Royal  rev- 
enue, part  of  which  the  Manor  itself,  continues  at 
this  time."  (1886.) 

It  is  now  (19 17)  a  part  of  the  personal  estate  of 
the  English  Sovereign  from  which  Grants  may  even 
yet  be  made  by  the  Crown  without  let  or  hinderance. 

England's  great  architects  such  as  Inigo  Jones,  his 
son-in-law  Webb  and  the  immortal  Sir  Christopher 
Wren  with  others  here  displayed  their  genius  In 
architecture.  Sovereign  after  Sovereign  and  others 
of  wealth  have  here  poured  out  their  gifts  for  the 


ENGLISH  CROWN  GRANTS         213 

Men  of  the  Sea.  Englishmen  here  show  with  pride 
a  wonderful  group  of  buildings  bearing  the  names  of 
many  English  Sovereigns  representing  great  bene- 
factions to  the  sea  defenders  of  the  realm. 

Not  all  of  the  old  Manor  of  East  Greenwich  was 
included  in  the  Hospital  and  Observatory  Grants. 
One  interesting  prerogative  still  clings  to  the  English 
Sovereigns  under  their  East  Greenwich  manorial 
privileges  still  retained  and  held  by  each  as  Lord  of 
this  Manor  of  East  Greenwich.  It  is  the  patronage 
of  the  living  of  St.  Marys,  the  Greenwich  Vicarage. 
St.  Mary's  Church  is  within  the  bounds  of  the  old 
Manor  of  East  Greenwich  in  the  County  of  Kent. 
His  English  Majesty  may  be  largely  an  ornamental 
Sovereign,  useful  at  social  and  State  functions,  but 
as  Lord  of  the  Manor  he  yet  has  absolute  power  to 
appoint  the  Vicar  of  St.  Mary's  Parish.  The  Manor 
is  the  property  of  the  King  and  not  of  the  kingdom 
and  its  benefits  inure  to  the  private  income  of  the 
English  Crown.  The  House  of  Commons  may  vote 
the  downfall  of  the  Empire's  Ministry,  to  which  the 
Sovereign  must  bow,  but  the  King  as  Lord  of  the 
Manor  has  the  absolute  power  to  retain  or  discharge 
the  Vicar  of  St.  Mary's  Parish,  before  which  the 
people  must  bow. 

We  find  that  any  Grant  having  been  made  by  the 
English  Crown  covering  lands  in  America,  the  cus- 
tom prevailed  in  England  of  making  such  Grants  of 
Crown  lands  as  of  the  Sovereign's  Manor. 

The  rights  and  powers  possessed  under  the  charter 
of  the  Manor  of  East  Greenwich,  and  exercised  by 
the  Lord  or  Lady  of  the  Manor,  did  not  differ  in  any 
material  or  substantial  way  from  the  rights  and  pow- 


214        ENGLISH  CROWN  GRANTS 

ers  properly  exercised  by  the  Lord  or  Lady  of  other 
Manors.  There  is  nothing,  therefore,  exceptional, 
unusual  or  specially  significant  in  the  selection  of  the 
Manor  of  East  Greenwich  in  preference  to  the  selec- 
tion of  other  Manors,  of  which  the  King  was  the 
Lord  or  the  Queen  was  the  Lady  excepting  however 
that  the  original  Grant  of  the  Duke  of  York  and 
other  basic  American  Grants  were  made  as  of  the 
Manor  of  East  Greenwich. 

The  peculiar  significance  in  such  transactions  was 
in  the  fact  that  the  Crown  in  dealing  with  much  of 
the  Crown  lands  made  such  Grants  "to  be  held  as  of 
the  Manor"  and  not  as  of  the  Throne. 

"They  were  Grants  by  the  King  and  not  by  the 
Kingdom."  When  land  was  granted  it  was  of  the 
personal  Crown  Estate  while  political  authority  when 
granted  was  by  kindly  prerogative. 

The  three  Charters  of  Virginia  granted  by  James 
I  were  held  as  of  the  Manor  of  East  Greenwich; 
so  was  also  the  New  England  Charter,  issued  in 
1620;  all  these  were  granted  by  James  I,  between 
1606  and  the  latter  date.  Charles  I  in  his  Grant  of 
Massachusetts  Bay  Charter  in  1629,  and  the  Charter 
for  the  State  of  Maine  in  1639,  were  held  as  of  the 
said  Manor  of  East  Greenwich.  Charles  II  then  fol- 
lowed by  issuing  the  two  Charters  of  the  Carolinas  in 

1663  and  1665,  respectively  and  with  the  Rhode 
Island  and  Providence  plantations  charter  in  1663. 
The  two  famous  Grants  to  the  Duke  of  York  cover- 
ing New  England,  New  York  and  New  Jersey,  in 

1664  and  1674  respectively  were  likewise  held  from 
the  King  of  England,  "as  of  the  Manor  of  East 


ENGLISH  CROWN  GRANTS         215 

Greenwich  in  the  County  of  Kent  in  free  and  common 
soccage  and  not  in  capite  or  by  knight  service." 

Among  all  the  American  Colonial  Charters,  the 
only  departulre  in  such  practice  were  the  Grants  of 
Maryland,  in  1632,  and  Pennsylvania  in  1681,  in 
each  of  which  it  was  provided  that  the  same  was  to 
be  held  of  the  Manor  of  Windsor  in  the  County  of 
Berks,  England.  That  of  Georgia,  granted  in  1732, 
was  granted  as  of  the  Manor  of  Hampton  Court  in 
the  County  of  Surrey,  England. 

The  issue  of  Grants  of  lands  to  be  held  as  of  the 
King's  Manor  and  not  direct  from  the  Crown,  has 
profound  legal  significance.  This  is  best  expressed 
in  the  language  of  an  eminent  authority  as  follows : 

"It  was  simply  an  adaptation  to  land  beyond 
"the  sea,  of  a  form  originally  used  in  the  grant 
"of  Crown  lands  in  England.  Its  use  may  be 
"taken  to  represent  the  closeness  of  the  legal 
"connection  between  the  colony  and  the  home 
"government — that  America  was,  in  the  view 
"of  the  King,  simply  an  extension  of  the  soil 
"of  England:' 

This  declaration  prepares  us  for  the  statement  that 
the  original  title  to  waste,  vacant,  unappropriated  and 
unpatented  lands  of  the  realm  was  vested  in  the 
Crown;  that  the  English  Sovereign  by  and  with  the 
assistance  of  its  Council,  which  it  appointed  and 
could  ignore,  made  Grants,  therefore,  to  individuals 
and  corporate  bodies;  that  lands  granted  thereunder 
were  held  as  of  an  English  Manor,  of  which  the 
English  Sovereign  was  Lord  or  Lady.  Therefore 
we  must  hark  back  to  English  Common  Law  pre- 


2i6         ENGLISH  CROWN  GRANTS 

vailing  at  that  time  to  properly  interpret  and  under- 
stand the  rights,  conditions  and  stipulations  expressed 
in  the  Crown  Grants  so  issued.  To  understand  the 
privileges  enjoyed  and  the  obligations  incurred  under 
English  Crown  Grants  to  lands  on  Staten  Island,  we 
must  refer  and  defer  to  the  Common  Law  of  Eng- 
land then  governing  the  land  tenures  of  the  Manor 
of  East  Greenwich  in  the  County  of  Kent. 

"The  tenures  of  Kent  were  conclusive  to  the 
"Court  when  judicially  interpreting  and  defin- 
"ing  the  Common  Law  of  England  as  relating 
"to  land  titles." 


ADVERSE  POSSESSIONS 

UNDER 

CROWN  GRANTS 

If  it  be  true  that  the  original  source  of  every  good 
title  was  in  the  one  Great  Sovereign,  and  that  it  has 
descended  from  the  Beneficent  King,  for  the  com- 
fort and  well  being  of  his  subjects,  certainly  a  title 
by  adverse  possession  constitutes  a  complete  reversal 
of  that  theory  and  must  have  emanated  from  the 
chief  potentate  of  the  nether  world. 

The  feudal  system,  with  all  that  followed  there- 
from was  based  upon  military  conquest.  It  con- 
stituted the  reward  of  the  victor.  The  victim,  how- 
ever, in  flight  from  his  foe,  explained  to  those  upon 
whom  his  presence  had  been  forced,  that  his  adver- 
sary had  violently  seized  his  estate  and  now  held  it  by 
adverse  possession. 

Society  of  even  a  Christian  civilization,  appears 
at  times  to  have  found  it  necessary  to  accept  the  ob- 
noxious doctrine  that  "Might  makes  right"  even 
though  the  Furies  themselves  overwhelm  with  cruel 
violence  the  weak  and  innocent.  A  de  facto  tyranni- 
cal government,  though  based  on  violence  and  blood- 
shed is  recognized  by  the  family  of  nations  if  it  sus- 
tains itself  for  a  reasonable  period  even  at  the  ex- 
pense of  human  liberty  and  freedom. 

A  nation  seizing  and  holding  territory  by  conquest 

217 


21 8         ENGLISH  CROWN  GRANTS 

in  an  unrighteous  war,  extends  its  jurisdiction  and 
thereafter  receives  international  approval  and  recog- 
nition of  its  sovereignty  so  unrighteously  obtained 
if  it  but  maintains  possession  and  stamps  into  sub- 
mission its  newly  but  murderously  acquired  province. 
Adverse  possession  is  the  child  of  this  unholy  doc- 
trine but  is  accorded  recognition  in  the  temple  of 
Justice,  but  under  rigid  surveillance  of  the  law.  We 
are  not,  therefore,  surprised  to  find  it  looked  upon 
in  our  legal  text-books  as  a  foe  of  human  society,  and 
yet  as  deemed  a  "necessary  evil."  It  quiets  litiga- 
tion after  maintaining  a  hostile  grip  upon  properties 
not  its  own  until  such  evil  possession  "ripens  into  a 
possessary  title." 

"There  are  cases  where  title  by  Adverse  Pos- 
"session  may,  and  will,  be  upheld.  //  there  is 
"no  disputed  question  of  fact,  and  the  posses- 
"session  has  been  clearly  adverse  and  undis- 
"turbed  for  the  required  period,  the  title  may  he 
"sustained.  But  even  in  such  a  case  that  class 
"of  titles  is  not  looked  upon  with  much  favor 
"by  persons  who  contemplate  purchasing  the 
"property  or  loaning  their  money  thereon  or  by 
"the  Courts/' 

(Harley  vs.  James,  50  N.  Y.,  38.) 
(Heller  vs.  Cohen,  154  N.  Y.,  299.) 

"There   are  five   essential  elements  necessary  to 
"constitute  effective  adverse  possession:" 

"First:        The   possession  must  be   hostile   and 
under  a  claim  of  right. 


ENGLISH  CROWN  GRANTS         219 

"Second:  It  must  be  actual. 

"Third:  It  must  be  open  and  notorious. 

"Fourth:  It  must  be  exclusive. 

"Fifth:  It  must  be  continuous. 

"If  any  of  these  constituants  is  wanting,  the  pos- 
"session  will  not  effect  a  bar  of  the  legal  title." 
(Enc.  of  Law,  2nd  Ed.,  795.) 

"A  claim  to  land,  unaccompanied  by  actual  pos- 
"session  will  not  ripen  into  a  title,  however  long  and 
"persistently  such  claim  is  asserted." 

(Cyl.  of  Law  &  P.,  Vol.  I,  983.) 

"A  residence  in  the  vicinity  of  the  land,  and  a 
claim  to  it,  though  such  claim  is  generally  recognized 
and  spoken  of  in  the  neighborhood  and  affirmed  by 
the  vicinage,  unaccompanied  by  any  of  the  acts  and 
indltia  of  ownership,  is  insufficient  to  constitute  own- 
ership." 

(Wood  vs.  McGuire,  15  Ga.,  202.) 

"The  acts  relied  upon  to  establish  adverse  posses- 
"sion  must  always  be  as  distinct  as  the  character  of 
"the  land  reasonably  admits  of,  and  must  be  exer- 
"cised  with  sufficient  continuity  to  acquaint  the  owner, 
"should  he  visit  the  land,  with  the  fact  that  a  claim  of 
"ownership  adverse  to  his  title  is  being  asserted. 
"Trivial  and  disconnected  acts,  doubtful  and  equivo- 
"cal  in  their  character,  and  which  do  not  clearly 
"indicate  the  intention  with  which  they  are  per- 
" formed,  cannot  be  regarded  as  amounting  to 
"possession.     Otherwise  a  man  might  be  disseized 


220         ENGLISH  CROWN  GRANTS 

"without  his  knowledge  and  the  statutes  of  limita- 
"tions  might  run  against  him  while  he  had  no  ground 
"to  believe  that  his  seizen  had  been  interrupted." 
(Cyl.  of  L.  &P.  Vol.  1,985.) 

"Where  adverse  possession  is  sought  to  be  shown 
"by  an  enclosure  of  the  land  for  the  length  of  time 
"prescribed  in  the  statutes,  such  an  enclosure  must  be 
"a  real  and  substantial  one." 

"The  land  must  be  completely  enclosed." 

"Land  fenced  only  on  two  sides,  one  of  the  other 
"sides  abutting  upon  an  unfenced  highway  and  in- 
"dicated  only  by  marked  trees,  is  not  protected  by 
"a  substantial  enclosure."  (Pope  vs.  Hanmer,  59 
Am.  Dec.  115.) 

"The  fencing  of  three  sides  of  an  oblong  or  square 
"piece  of  land  is  not  a  sufficient  enclosure  to  make  an 
"adverse  possession  so  as  to  vest  title  in  a  wrong- 
"doer  as  against  the  real  owner,  though  such  fences 
"exclude  the  latter  from  the  use  and  enjoyment  of 
"the  land."     (Armstrong  vs.  Risteau,  59  Am.  Dec. 

115.) 

"Placing  a  fence  consisting  of  small  posts  with  two 
"rails  nailed  on  around  a  piece  of  land,  without 
"actually  occupying  the  land  or  any  part  of  it,  and 
"suffering  the  fence  to  go  to  decay  in  a  year  or  two 
"so  that  it  will  not  keep  out  cattle,  is  not  sufficient  to 
"constitute  prima  facia  evidence  of  title  to  the  land 
"by  actual  possession.'  (Borel  vs.  Rollins  20  Cal. 
408.) 

"A  fence  which  the  owner  attempts  to  keep  in  re- 


ENGLISH  CROWN  GRANTS         221 

"pair  constitutes  an  actual  enclosure  for  the  purpose 
"of  adverse  possession,  though  a  plank  is  sometimes 
"off  or  a  plank  down."     (44  S.  W.  iii.) 

"The  enclosure  alone  is  not  sufficient.  It  must  be 
"attended  by  actual  possession." 

"The  payment  of  taxes  upon  land  does  not  con- 
"stitute  actual  possession  of  it."  (Ambrose  Oreg. 
484,  s6,  Pac.  513.) 

"Surveying  the  land,  maping  the  same,  and  issu- 
"ing  a  mortgage  thereon,  and  occasionally  entering 
"upon  the  land  to  look  after  it,  employing  an  agent 
"so  to  do,  or  to  occasionally  cut  and  carry  off  fire- 
"wood  and  rails  therefrom,  does  not  constitute  actual 
"possession."     (Cyl.  L.  &  P.  Vol.  I,  993.) 

"The  fact  that  the  claimant  of  land  posts  notices 
"upon  it  merely  indicates  an  intention  to  hold  the 
"land,  and  is  not  sufficient  proof  of  adverse  possess- 
"ion."     (Lynde  vs.  Williams  68  Mo.  360.) 

"The  fact  that  one  claiming  a  large  tract  of  land 
"under  a  deed,  sold  and  conveyed  many  small  tracts 
"within  the  boundary  is  insufficient  to  show  actual 
"possession;  so  is  the  fact  that  the  claimant  offered 
"the  whole  tract  for  sale  and  listed  it  for  taxation." 
(Fuller  vs.  Elizabeth  City  23  S.  E.  922.) 

In  the  case  of  Jackson  vs.  Bonnell  (9  Johns  163) 
The  Court  held  as  to  adverse  possession,  "The  doc- 
"trine  of  the  Court  with  respect  to  adverse  posses- 
"sion  is  that  it  is  to  be  taken  strictly  and  not  to  be 
"made  out  by  inference  but  by  clear  and  positive 
"proof.     Every  presumption  is  in  favor  of  possess- 


222         ENGLISH  CROWN  GRANTS 

"ion  in  subordination  to  the  title  of  the  true  owner." 

In  the  case  of  Robers  vs.  Baumgarten  (no  N. 
Y.)  the  Court  held:  "Proof  of  an  occasional  resort 
"to  the  lands  in  question  in  the  cutting  of  salt  meadow 
"grass  would  not  be  sufficient  to  establish  occupancy 
"or  possession  in  the  absence  of  a  deed  describing  and 
"including  them." 

In  the  case  of  the  Mission  of  the  Immaculate  Vir- 
gin vs.  Cronin  (143  N.  Y.  524),  the  Court  found 
that:  "Where  land  is  unenclosed,  uncultivated  and 
"unoccupied,  the  fact  that  a  person  has  for  twenty 
"years  claimed  title  thereto,  surveyed  it,  marked  its 
"boundaries  by  monuments,  cut  trees  thereon  from 
"time  to  time,  and  for  a  few  years  has  paid  taxes 
"thereon,  do  not  establish  adverse  possession;  nor 
"do  these  facts,  in  the  absence  of  constructive  or  ac- 
"tual  possession  authorize  the  presumption  of  a  Grant 
"from  the  true  owner."  (Distinguishing  Roe  vs. 
Strong,  119  N.  Y.  316.)  (Williams  vs.  Rand  9  Tex. 
Civ.  App.  651.) 

In  the  case  of  McRoberts  vs.  Bergman  ( 132  N.  Y. 
73)  in  which  case  Bergman  relied  upon  adverse 
possession  and  refused  to  stand  upon  a  deed  which 
he  claimed  to  have,  showing  title  descending  to  him 
from  Lancaster  Symes,  the  Court  held  that  the 
"plaintiff  must  recover  upon  the  strength  of  his  own 
title  and  not  upon  the  weakness  of  that  of  the  de- 
fendant. Where  the  former  shows  a  title  better  in 
respect  to  his  right  of  possession,  he  is  entitled  to 
recover." 

Nowhere  in  the  report  of  this  case  is  the  Lan- 


ENGLISH  CROWN  GRANTS         223 

caster  Symes  Grant  referred  to  or  his  name  intro- 
duced by  the  Court  or  by  the  Counsel  for  either 
plaintiff  or  defendant. 

The  Symes  Grant  was  not  at  issue  in  this  case 
despite  the  frequently  and  much  quoted  legal  tra- 
dition that  such  was  the  case. 

*'A  party  cannot  claim  by  adverse  possession 
against  the  State  if  he  took  under  a  conveyance  recog- 
nizing the  public  right."  (Bridge  vs.  Wyckoff,  67 
N.  Y.  130.) 

No  one  having  accepted  a  Grant  from  the  State 
can  successfully  claim  thereunder  as  against  the  true 
owner  where  the  title  claimed  by  the  State  has  failed. 

"A  Crown  patent  is  conclusive  as  against  a  title 
"founded  on  mere  adverse  occupancy  or  those  wrong- 
" fully  in  possession."  Gibson  vs.  Choteau  113  Wall 
92;  Parmelee  vs.  Oswega  S.  Co.  6  N.  Y.  74.) 

Constructive  possession  was  sufficient  under  Eng- 
lish Common  Law. 

"A  party  out  of  actual  possession  but  who  is  in 
"constructive  possession  may  bring  action  for  tres- 
"pass."  (Smith  vs.  Milles.  Burnford  &  East  Rep. 
Vol.  I,  475,  Court  of  Kings  Bench,  1786.) 

"Silence  is  not  a  bar  to  a  later  assertion  of  title." 
(Thompson  vs.  Simpson  128  N.  Y.  270.) 

"No  title  to  land  under  water  can  be  acquired  as 
"against  the  State  or  its  Grantee  by  planting  oysters 
"thereon  for  any  length  of  time  without  other  title 


224         ENGLISH  CROWN  GRANTS 

"than  that  so  sought  to  be  acquired."     (People  vs. 
Lowndes  5^  Hun.,  N.  Y.  469  8  N.  Y.  Suppl.  908.) 

"From  the  nature  of  the  property  it  is  difficult  to 
"show  such  a  possession  of  land  under  water  as  is 
"required  to  support  the  presumption  of  a  Grant; 
"as  we  fail  to  find  any  case  where  anything  short  of 
**a  permanent  and  exclusive  occupation  of  the  soil  has 
"been  granted  as  sufficient."  (Boswell  on  Lim.  and 
Ad.  Possessions.) 

"The  permission  or  command  of  the  State  can  give 
"no  power  to  convey  private  rights  even  for  a  public 
"service  without  payment  of  compensation."  (Muhl- 
ker  vs.  N.  Y.  &  R.  Co.  197  U.  S.  544.  Birrell  vs. 
N.  Y.  &  R.  Co.  198  U.  S.  390.  Siegel  vs.  N.  Y.  & 
R.  Co.  200  U.  S.  615.) 

"One  may  not  improve  another's  land  without  his 
"consent  and  charge  him  therefor."  (Spruck  vs. 
McRoberts  139  N.  Y.  193.) 

''Docks  and  two  marine  railways  were  not  sufi- 
"cient  to  establish  adverse  possession  on  the  shore- 
" front."     (Delancey  vs.  Piepgrass  138  N.  Y.  26.) 

"The  owner  of  the  uplands  had  continued  his 
"boundary  fences  to  low  water  mark,  to  prevent  cat- 
"tle  passing  around  them,  and  had  built  a  bulkhead 
"and  filled  in  with  earth  a  small  portion  of  the  land 
"between  high  and  low  water  mark  and  had  cut  sedge 
"thereon;  and  it  was  held  that  this  was  not  such  an 
"occupation  of  the  land  as  would  support  a  defense 
'*of  adverse  possession."  (McFarlane  vs.  Kerr,  10 
Bosw.  249.) 


ENGLISH  CROWN  GRANTS         225 

"In  order  to  make  good  a  claim  of  title  by  ad- 
" verse  holding,  the  true  owner  must  have  actual 
"knowledge  of  the  hostile  claim,  or  the  possession 
"must  be  so  open,  visible  and  notorious  as  to  raise 
"the  presumption  of  notice  to  the  world  that  the 
"right  of  the  true  owner  is  invaded  intentionally  and 
"with  a  purpose  to  assert  a  claim  of  title  adversely 
"to  his,  so  patent  that  the  owner  could  not  be  de- 
"ceived  and  such  that  if  he  remains  in  ignorance  it  is 
"his  own  fault.  A  clandestine  entry  or  possession 
"will  not  set  the  Statute  in  motion.  The  owner  will 
"not  be  condemned  to  lose  his  land  because  he  has 
"failed  to  sue  for  its  recovery,  when  he  had  no  no- 
"tice  that  it  was  held  or  claimed  adversely."  (Cyl. 
Vol.  I,  997.) 

"There  must  therefore  be  a  continuous  oc- 
"cupation  and  possession  of  the  premises  in- 
"cluded  in  the  instrument  or  some  part  thereof 
"for  twenty  years. 

"There  must,  however,  be  an  occupant,  not 
"necessarily  of  the  entire  tract,  but  of  some  part 
"of  the  land  claimed  to  be  held  adversely." 

"The  possession  and  occupation  referred  to 
"in  the  section  of  the  Code  is  actual  occupation 
"of  the  premises  or  of  some  part  of  them  and 
"not  the  occasional  going  upon  the  premises  for 
"the  purpose  of  cutting  wood,  and  drawing  it  off. 
"These  acts  do  not  constitute  occupation  and 
"possession  of  any  part  of  the  premises.  They 
"partake  rather  of  the  nature  of  trespass  on  real 
"property." 

"To  constitute  adverse  possession  the  Legis- 


226         ENGLISH  CROWN  GRANTS 

"lature  contemplates  an  actual  and  continued  oc- 
"cupation  of  at  least  some  part  of  the  premises 
"under  a  claim  of  title  to  it  all  and  where  there 
"has  been  no  actual  occupation  of  any  part  and 
"no  inclosing,  there  can  be  no  constructive  ad- 
"verse  possession."  (Wiechers  vs.  McCormicIc, 
122N.  Y.  Ap.  860.) 

"Whatever  was  done  upon  it  was  to  take  value 
from  it,  not  to  put  value  into  it.  .  .  .  Payment  of 
taxes,  surveying  and  assertion  of  right  do  not  con- 
stitute possession.  .  .  .  Going  upon  land  from 
time  to  time  and  cutting  logs  thereon,  does  not  give 
possession.  Such  acts  are  merely  trespasses  upon 
the  land  against  the  true  owner,  whoever  he  may 
be.  Any  other  intruder  may  commit  similar  tres- 
passes without  liability  to  any  other  trespasser. 
Such  acts  do  not  constitute  a  disseizin  of  the  true 
owner."     (Thompson  vs.  Burhans,  79  N.  Y.  93.) 

"A  person  cannot  acquire  title  to  an  uninclosed, 
unoccupied,  unimproved  parcel  of  land  by  taking  a 
deed  thereof  from  one  not  the  owner  and  then 
merely  going  upon  the  land  and  there  asserting  his 
ownership,  nor  can  he  acquire  the  title  by  taking 
such  a  deed  and  then  making  an  occasional  foray 
upon  the  land  for  grass  or  sand  and  thus  com- 
mitting trespass  against  the  real  owner."  (Miller 
vs.  L.  I.  R.  R.  Co.,  71  N.  Y.  380.) 

He  who  takes  record  title  in  descent  from  one 
whom  he  believes  acquired  his  title  by  adverse  pos- 
session must  be  able  to  prove  the  hostile  intent  of  his 
predecessor  in  possession.     It  will  not  be  sufficient  to 


ENGLISH  CROWN  GRANTS         227 

show  that  such  predecessor  held  possession  for  the 
period  prescribed  in  the  Statute.  He  may  have  held 
under  a  lease  or  other  instrument  not  hostile  to  the 
true  owner. 

It  must  be  shown  by  actual  proof  that  for  each 
year  during  the  whole  term  such  possession  was  held 
in  an  open,  notorious  and  hostile  manner,  adverse  to 
the  true  owner  and  with  all  the  conditions  requisite 
thereto. 

Such  proof  is  extremely  difficult  and  rarely  pos- 
sible to  obtain  even  where  the  facts  are  consistent 
with  such  a  theory. 

It  is  one  thing  to  know  a  fact  and  another  thing 
to  prove  the  same  without  flaw  and  to  the  satisfac- 
tion of  a  Court,  especially  where  the  theory  is  re- 
pugnant to  justice.  In  consequence  thereof,  the  law 
is  strictly  construed. 


THE   LARGER  VISION 

UNDER 

CROWN   GRANTS 


He  who  takes  title  to  lands,  takes  it  subject  to 
all  of  the  prior  conditions  and  restrictions  imposed 
of  record  thereon. 

"Assuming  the  King  to  be  the  source  of 
"all  titles  both  of  dignity  and  property.  Grants 
"of  land  from  him  to  his  chieftains  were  made 
"in  consideration  of  military  service  to  him- 
"self,  i.  e.,  the  Crown,  whenever  required. 

"These  direct  Grantees  of  the  Crown,  ten- 
"ants  in  chief  or  in  capite,  as  they  were  styled, 
"parceled  out  their  Grants  among  their  foUow- 
"ers  or  vassals,  for  like  considerations  of 
"Knight  service  to  themselves  as  mesne  lords 
"and  these  again  to  inferior  persons  in  consid- 
"eration  of  various  kinds  of  service. 

"Every  land  tenure  of  the  kingdom  was  thus 
"linked  with  and  dependent  on  its  immediate 
"superior  Grant,  all  culminating  in  the  King 
"as  the  Lord  paramount  and  military  chief  of 
"the  State." 

It  will  therefore  be  observed  that  each  and  every 
sub-proprietor,  through  succeeding  generations,  who 
took  title  to  and  entered  upon  any  portion  of  the 

228 


ENGLISH  CROWN  GRANTS         229 

lands  covered  and  conveyed  under  an  original 
Crown  Grant,  acquired  possession  thereof  under  the 
restrictions  and  limitations  of  the  original  foudation 
Grant  from  the  Sovereign. 

In  the  opening  chapter  of  this  book  we  have 
undertaken  to  show  how  modern  title  searchers  in 
tracing  back  through  the  records  of  the  past  gen- 
erations, the  descent  of  titles  as  they  have  come 
down  to  us  from  generations  now  gone,  have  labor- 
iously found  their  way  to  human  Sovereigns  as  the 
original  source  of  all  land  titles. 

They  have  halted  at  the  throne  of  worldly  mon- 
archs  and  have  noted  as  final  and  conclusive  the 
conditions  of  title  imposed  by  earthly  kings.  They 
have  largely  if  not  totally  failed  to  discover  and  ap- 
ply the  fundamentally  controlling  conditions  clearly 
and  emphatically  recorded  in  the  Great  Book  of 
Records  of  the  original  Crown  Grant  made  by  the 
King  of  all  the  Earth,  i.  e.,  the  Book  of  all  Books — 
the  Bible — the  Word  of  God. 

The  basic  conditions  therein  prescribed,  if  vio- 
lated, carried  their  own  penalties.  The  divine  right 
of  reentry  and  confiscation  are  therein  clearly  re- 
served, as  against  all  Grantees  who  lack  fealty  and 
service  to  the  Great  King. 

The  Sub-Grants  made  thereunder,  by  human  Sov- 
ereigns and  all  of  the  subsequent  deeds  and  convey- 
ances by  individuals  to  individuals,  despite  their 
"warranty's,"  admit  of  no  possible  unrestricted  and 
unconditional  titles  as  vested  in  any  citizen,  to  any 
land  in  any  portion  of  the  habitable  world. 

All  lands  which  are  claimed  to  be  privately  owned 
are  in  fact,  consciously  or  unconsciously,  held  sub- 
ject to  clearly  defined  conditions  of  fealty  and  serv- 


230         ENGLISH  CROWN  GRANTS 

ice  to  the  World's  Great  Sovereign,  which  condi- 
tions are  fully  recorded  in  the  Record  of  the  Orig- 
inal Crown  Grant  referred  to  above. 

Such  obligations  *'run  with  the  land." 

Human  kings  recognize,  (though  in  practice  they 
may  disregard)  these  original  and  governing  condi- 
tions, when  they  assert  the  "divine  right  of  Kings." 
They  thereby  claim  special  dignity  and  rights  of 
property  by  Divine  Charter.  They  therefore  can- 
not logically  deny  the  force  and  effect  of  the  condi- 
tions imposed  thereby. 

There  are  certain  implied  and  expressed  rights 
and  privileges  which  attach  to  and  descend  with 
each  and  every  Grant  to  land  from  such  a  bene- 
ficient  and  truly  Royal  source,  even  though  such  im- 
plied rights  are  not  engrossed  in  the  language  of 
each  of  the  conveyances. 

These  rights  are  confirmed  by  the  divinely  in- 
spired Magna  Charta  of  the  Great  King's  Realm 
and  are  enjoyed  by  the  worthy  Grantees  under  the 
common  law  of  Divine  beneficience.  Very  solemn 
obligations  also  attach  thereto.  Human  Judges 
have  recognized  such  Divinely  ordained  rights  of 
common  humanity,  while  a  Christian  civilization  has 
rediscovered  the  conditions  imposed  upon  rights  of 
ownership.  The  conditions  prescribed  are  Fealty 
and  Service,  under  the  moral  or  common  law  of 
righteousness. 

The  right  to  the  air  we  breathe,  the  waters  we 
navigate,  together  with  the  sunshine  we  enjoy,  are 
rights  common  to  all  humanity  and  are  inalienable. 

One  Grantee  may  not  deprive  another  Grantee  of 
either  one  or  more  of  such  rights. 


ENGLISH  CROWN  GRANTS         231 

He  who  is  at  the  source  of  a  stream  of  water  may 
not  divert  the  same  to  his  neighbor's  hurt. 

He  who  chooses  to  operate  a  manufacturing  plant 
must  so  conduct  the  same  as  not  to  pollute  his  neigh- 
bors' air  or  the  water  he  drinks. 

The  popular  appreciation  of  certain  equitable  or 
moral  rights  is  happily  transforming  human  laws 
and  the  spirit  of  fraternity  is  coming  forth,  more 
and  more,  to  full  flower  and  fruitage. 

In  the  toilsome  upward  climb  of  human  life,  to- 
ward higher  planes  of  thinking,  so-called  "property 
rights"  are  becoming  more  and  more  subject  to  the 
great  moral  principles  or  mandatory  laws  of  the 
Divine  Sovereign  proclaimed  by  Him  for  controlling 
and  governing  all  human  relations. 

In  distress,  one  human,  though  a  stranger  to  the 
land  owner,  may  trespass  without  penalty  upon  his 
neighbor's  land. 

A  man  famishing  with  hunger,  may  rightfully  de- 
mand bread  from  his  next-of-kin  and  even  of  the 
community  at  large. 

The  possession  of  power  gives  no  right  to  the 
strong  to  oppress  the  weak,  but  on  the  contrary  im- 
poses a  peculiar  moral  responsibility  to  succor  and 
defend  the  needy. 

This  principle,  public  conscience  now  admits, 
holds  good  whether  such  power  is  represented  by 
miiltary  weapons,  consists  of  physical  strength  or 
is  inherent  in  the  ownership  of  lands  on  which  others 
depend  for  life,  health  and  happiness. 

Science  cannot  isolate  and  exhibit  in  tangible  form 
that  which  constitutes  the  law  of  gravitation,  which 
law  holds  its  sway  in  all  organic  matter.  Neither 
can  we  disassociate  and  visualize  the  moral  elements 


232         ENGLISH  CROWN  GRANTS 

in  human  relations. 

These  elements  when  codified  in  action  repre- 
sent the  great,  though  erstwhile  dormant  laws  with 
which  human  society,  from  its  very  concept  has  been 
charged. 

The  human  race  is  forging  ahead  to  the  accept- 
ance of  the  true  theory  of  Divine  Sovereignty  and  is 
catching  anew,  with  increased  light,  the  vision  of 
original  Divine  proprietorship.  Temporary  but  con- 
ditional human  possession  of  land  is  to  be  followed 
by  ultimate  possession  by  the  Creator  of  all  things. 
His  statutes  are  right.  His  laws  are  just.  Having 
out  of  His  marvelous  beneficence,  issued  to  us  His 
Royal  Grant,  He  doth  require  that  we  too  shall  be 
likewise  benefactors.  While  powers  of  administra- 
tion are  possessed,  the  true  Grantee  will  not  forget 
his  final  accountability  for  the  use  to  which  he  puts 
that  of  which  he  has  been  made  God's  trustee  for 
the  benefit  of  his  fellow  man. 

A  new  conviction  of  moral  right  and  obligation 
is  being  formed.  This  is  especially  true  of  the 
moral  rights  and  obligations  existing  between  fellow 
Grantees  and  also  between  those  who  may  and  those 
may  not  be  able  to  trace  back  their  land  titles,  with- 
out a  break  in  the  chain  of  record,  to  the  Great  Orig- 
inal Source  of  all  titles,  but  whose  genealogy  extends 
hack  to  the  same  Father's  House. 

This  linking  of  property  rights  to  the  true  and 
only  Original  Source  of  all  titles  and  the  full  and 
complete  recognition  of  the  solemn  conditions  im- 
posed thereon  by  the  Royal  Grant,  is  transforming 
proprietorship  into  stewardship  and  is  smoothing 
life's  rough  pathways  to  many  weary  feet,  which  in 


ENGLISH  CROWN  GRANTS         233 

their  toilsome  wanderings  have  trespassed  upon  the 
rights  in  lands  of  others. 

The  defiant  cry  of  the  original  terror  stricken 
Cain,  "Am  I  my  brother's  keeper?"  was  but  the 
unconscious  outcry  of  a  great  moral  protest  within 
him  which  he  sought  to  smother,  but  which  burst 
forth  to  stir  the  consciences  of  men  for  all  time  to 
come. 

Wheeled  vehicles,  according  to  city  ordinances, 
may  not  travel  on  public  sidewalks,  but  the  cripple 
may,  with  perfect  impunity,  roll  his  invalid's  chair 
thereon,  under  the  higher  law  which  makes  its  appeal 
to  manly  strength  and  moral  consciousness. 

All  traffic,  despite  statute  laws,  must  cease,  while 
speed  limits  are  disregarded,  as  the  rushing  ambu- 
lance carries  its  burden  of  suffering  to  the  hospital 
built  by  strangers  from  revenues  arbitrarily  assessed 
as  "quit-rents"  or  taxes  on  lands  generally  claimed 
by  private  individuals  as  owned  by  them  in  fee. 

He  who  but  admits  that  original  proprietorship 
and  ultimate  ownership  of  all  land  is  vested  in  the 
Divine  Sovereign,  back  and  above  human  sovereigns 
(and  who  can  deny  it?)  must  then  accept  its  carol- 
lary  that  human  relations  are  those  of  brotherhood, 
and  that  stewardship  is  a  true  substitute  for  the 
false  doctrine  of  personal,  unconditional,  unre- 
stricted and  selfish  ownership  of  land  and  other 
property. 

He  who  may  have  unwittingly  trespassed  upon 
another's  land  finds  under  this  doctrine  fraternity 
and  not  hostility  in  his  efforts  to  amend  the  wrong. 

The  great  corporations,  which  through  error  may 
have  extended  their  tracks  and  constructed  their 
warehouses,  factories  and  docks  on  lands  not  their 


234         ENGLISH  CROWN  GRANTS 

own,  may  unhesitatingly  make  their  appeal  for  right- 
ful consideration,  at  the  bar  of  equity  in  the  court 
of  inner  conscience  where  moral  law  reigns  supreme. 

Where  such  trespass  has  resulted  in  the  enhance- 
ment of  values  to  remaining  lands  by  virtue  of  such 
added  improvements  having  been  placed  adjacent 
thereto,  then  equity  should  consider  the  values  of 
such  increment,  in  abatement  of  damages  claimed 
for  lands  so  taken  in  error  of  judgment  or  in  con- 
sequence of  faulty  surveys. 

The  moral  law  by  divine  mandate  "runs  with  the 
land,"  and  its  demand  for  equity  and  justice  may  not 
be  claimed  by  one  and  yet  denied  by  him  to  another. 

"He  who  asks  equity  must  do  equity." 

It  may  not  permit  the  ruthless  tyrants  of  eviction 
to  lay  their  cold  and  remorseless  hands  upon  the 
gates  of  "God's  acre"  in  which  sleeps  the  silent 
forms  of  the  beloved  dead. 

Conscience,  the  arbiter  of  moral  law,  may  decree 
that  temples  for  divine  worship  erected  by  error 
upon  plots  of  land  erroneously  supposed  to  be 
owned  by  the  devotees  at  such  sacred  shrines,  shall 
be  exempt  from  invasion  by  land  claimants. 

Other  great  eleemosynary  institutions,  which  are 
but  generous  impulses  of  human  hearts  worked  out 
in  wood  and  mortar,  may  carry  out  their  plans  for 
humanity,  unannoyed  by  processes  of  eviction. 

Equity  is  but  the  expression  of  Divine  ideals  ap- 
plied by  men  in  human  relations. 

This  same  moral  law  imposed  by  Divine  benefi- 
cence, at  the  very  cradle  of  the  human  race,  may 
even  insist  that  weary  womanhood  and  innocent 
childhood  shall  find  their  way  to  sanded  beaches 
and  ocean  waters.     The  gateways  to  such  shores 


ENGLISH  CROWN  GRANTS         235 

may  be  closeable  under  statute  law,  but  may  also 
be  held  open  by  those  proprietors  who  hear,  heed 
and  obey  the  mandate  of  suffering  as  it  speaks  by 
its  need  to  such  owners  who  recognize  the  conditions 
of  Fealty  and  Service  upon  which  they  but  for  a 
short  period  of  time  hold  land  titles  in  trust  for  the 
true  Original  Proprietor  and  Ultimate  Owner  of 
all  things. 

They  must  thus  think,  who  have  discovered  the 
governing  and  controlling  conditions  inserted  by  the 
Original   Proprietor   and   Ultimate    Owner   of   all 
lands,  the-King-of-all-the-Earth,  when  He  issued  His 
Original  Crown  Grant  to  the  Children  of  Men. 
"What  doth  the  Lord  require  of  thee, 
"but  to  do  justly  and  to  love  mercy 
"and  to  walk  humbly  with  thy  God." 

"The  Massachusetts  Body  of  Liberties  (Section 
i)  seems  to  think  that  *  *  *  jf  there  be  no 
common  law  or  statute  for  the  case,  it  may  be  'by 
the  Word  of  God,'  so  Christianity  is  part  of  the 
Common  Law."  (Law  of  the  Federal  and  State 
Constitution  of  the  U.  S.,  Chap.  6,  page  2^-) 

"Christian  Morality  is  the  foundation  of  inter- 
national law." — (Cardinal  Gasquet,  Rome.) 


THE   SYMES   FOUNDATION 

AND 

CROWN    GRANTS 

Consistent  with  the  ethical  and  legal  principles 
hereinbefore  set  forth  and  the  larger  view  of  true 
citizenship,  which  recognizes  human  interdepend- 
ence and  mutual  obligations,  the  owners  of  the  Lan- 
caster Symes  Estate  on  Staten  Island  incorporated 
The  Symes  Foundation  and  have  transferred  to  it 
the  lands  on  Staten  Island  included  therein. 

We  give  in  the  following  order  a  transcript  of 
the  record  covering  the  dedication  to  the  public  weal 
of  the  Symes  Estate,  with  its  very  large  and  increas- 
ing values  descending  under  and  from  the  English 
Crown  Grant  to  Lancaster  Symes. 

Section   i. — Letter  from  the  Title  Companies  to 

the    citizens    and   friends   of   Staten 

Island. 
Section  2. — Certificate  of  Incorporation  of  The 

Symes  Foundation. 
Section  3. — Contract     between     the     American 

Title  and  Trust  Company  and  The 

Symes  Foundation. 

These  citations  reveal  the  fact  that  after  two  cen- 
turies the  Life  and  Character  of  Major  Lancaster 
Symes  has  found  full  appreciation  and  the  Estate  on 
Staten  Island  which  he  gathered  together  as  a  loyal 

236 


ENGLISH  CROWN  GRANTS         237 

subject  and  Christian  citizen  has  been  set  apart  in 
a  manner  to  make  it  a  lasting  blessing  to  Staten 
Island,  of  which  he  was  a  benefactor  and  to  Amer- 
ica, to  which  he  came  from  England  and  to  which 
he  devoted  his  life. 


Section  i. 


American  Title  and  Security 
Company,  American  Title 
AND  Trust  Company 

And 

The  Symes  Foundation, 

Incorporated. 
"Staten  Island  for  Staten  Islanders." 

Richmond,  Staten  Island,  N.  Y. 
July  2nd,  19 1 7. 

To  THE  Citizens  and  friends  of  Staten  Island  : 
After  years  of  costly  and  laborious  research  con- 
ducted by  specialists  in  England  and  America,  the 
undersigned  title  companies  under  the  direction  of 
their  President,  Mr.  S.  L.  Mershon,  have  clearly 
defined  and  definitely  located,  from  official  maps 
and  records,  all  of  the  lands  on  Staten  Island  orig- 
inally granted  to  Major  Lancaster  Symes  under  the 
English  Crown  Grant  made  to  him  in  1708  and 
duly  recorded  at  Albany,  New  York. 


238         ENGLISH  CROWN  GRANTS 

The  regularity  and  binding  force  and  effect  of 
the  said  grant  has  never  been  called  in  question  in 
any  legal  proceedings,  but  on  the  contrary  it  has 
been  admitted,  ratified  and  confirmed  by  the  Prov- 
ince of  New  York,  the  State  of  New  York,  eminent 
railway  and  other  corporate  and  private  counsel. 
Upon  it  rests  and  from  it  descends  the  title  to 
various  lands  of  great  value  on  Staten  Island  upon 
which  costly  ecclesiastical,  residential  and  commer- 
cial improvements  have  been  erected  and  for  which 
many  warranty  deeds  have  been  issued  and  ap- 
proved for  generations  and  which  have  never  been 
challenged  by  any  title  companies,  mortgage  com- 
panies or  private  counsel.  The  titles  so  referred  to 
are  acceptable  to  savings  banks,  building  loan  asso- 
ciations and  other  organizations  for  loans  thereon. 

St.  Andrews  Protestant  Episcopal  Church  at 
Richmond,  Staten  Island,  received  its  endowment 
deed  direct  from  Major  Lancaster  Symes,  who  re- 
ceived his  title  from  Queen  Anne,  "The  good 
Queen"  of  England. 

For  generations,  however,  a  cloud  has  rested  upon 
large  areas  of  land  on  Staten  Island  because  of 
the  uncertainty  in  the  popular  mind  as  well  as  in 
the  legal  mind  as  to  what  lands,  other  than  those 
known  to  be,  were  covered  by  and  included  in  the 
Symes  title. 

To  this  problem  the  undersigned  two  title  com- 
panies have  successfully  devoted  their  untiring  ef- 
forts and  financial  resources  with  the  result  that  such 
clouds  of  uncertainty  and  doubt  have  been  com- 
pletely dispelled. 

From  the  commencement  of  this  investigation  by 
these  two  title   companies  they  have  at  all  times 


ENGLISH  CROWN  GRANTS         239 

kept  clearly  in  view  the  eventual  free  release  of 
the  homesteads  of  Staten  Island  from  the  shadow 
whether  justly  or  unjustly  cast  upon  such  homes  by 
the  Symes  Grant.  They  have  at  all  times  intended 
to  free  the  religious  and  charitable  institutions  on 
Staten  Island  from  the  lien  of  this  Grant  and  to 
open  up  under  proper  moral  control,  certain  beaches 
on  Staten  Island  for  free  use  and  enjoyment  by 
Staten  Islanders  and  their  friends.  These  and  other 
benefits  should  make  the  Symes  Grant  a  blessing  to 
Staten  Island  for  all  time  to  come. 

In  fulfilment  of  this  ambitious  program  the  two 
title  companies  now  voluntarily  and  with  great  pleas- 
ure pass  over  to  The  Symes  Foundation,  which  they 
have  established  and  endowed,  a  good,  complete  and 
perfect  title  to  the  lands  now  remaining  of  record 
in  Richmond  County  in  the  name  of  the  American 
Title  and  Trust  Company. 

Such  title  cannot  be  successfully  challenged  or 
assailed  and  is  good  and  sufficient  in  The  Symes 
Foundation  and  to  the  defense  of  which  the  two 
undersigned  title  companies  pledge  their  unqualified 
support  at  any  time  upon  demand. 

The  control  of  this  entire  estate  now  passes  into 
the  hands  of  the  representatives  of  Staten  Island 
through  The  Symes  Foundation  but  charged  with 
one  supreme  and  sacred  trust,  that  it  will  be  used 
at  all  times  for  the  highest  and  best  good  of  Staten 
Island  and  its  people  as  set  forth  in  a  contract,  gov- 
erning such  use  and  executed  between  the  under- 
signed and  The  Symes  Foundation. 

In  addition  thereto  provision  has  been  made  by 
the  two  title  companies  for  a  large  and  increasing 
financial    endowment    for    the    Symes    Foundation, 


240         ENGLISH  CROWN  GRANTS 

which  should  result  in  unmeasurable  benefits  to  the 
public. 

Respectfully, 

S.  L.  Mershon,  President, 
American  Title  &  Security  Co. 
Richmond,  Staten  Island, 

American  Title  &  Trust  Co. 
Wilmington,  Delaware. 

Section  2. 
CERTIFICATE  OF  INCORPORATION. 

The  Symes  Foundation,  Inc. 

We,  the  undersigned,  all  being  persons  of  full 
age  and  all  or  more  than  two-thirds  of  us  being  cit- 
izens of  the  United  States  and  all  or  more  than 
one,  being  residents  of  the  State  of  New  York,  de- 
siring to  form  a  corporation  for  benevolent  and 
charitable  work,  do  hereby  and  pursuant  to  sections 
40  and  41  of  the  Membership  Corporations  Law 
of  the  State  of  New  York  make,  sign  and  acknowl- 
edge this  certificate  as  follows: — 

First,  the  name  of  the  proposed  corporation  is 
The  Symes  Foundation,  Inc. 

Second,  the  purposes  of  the  Corporation  are  (i) 
to  take  title  to  and  ownership  of  certain  lands,  prem- 
ises, rights  and  privileges  represented  by  and  ex- 
istent under  the  "Lancaster  Symes  Grant,"  which 
rights  and  interests  are  now  vested  in  and  exercised 
by  the  American  Title  and  Trust  Company,  a  Dela- 
ware   Corporation   with   its  principal   office   in   the 


ENGLISH  CROWN  GRANTS         241 

Dupont  Building,  Wilmington,  Delaware;  (2)  to 
hold  the  same  in  fee,  to  sell  and  convey  any  part 
or  parts,  to  devote  to  public  use  any  part  or  parts; 
(3)  to  use  such  proceeds  as  may  be  available  from 
said  sale  or  otherwise  together  with  any  portion 
of  said  properties  reserved  and  held  to  promote  and 
develop  the  physical,  mental,  moral  and  spiritual 
welfare  of  the  people  of  Staten  Island  and  else- 
where, {a)  by  furnishing  to  the  people  of  Staten 
Island  certain  bathing  beaches,  (b)  by  erecting 
thereon,  equipping  and  sustaining  fresh-air  camps 
and  lodges,  hospitals,  rest  cures,  and  hotels  for  the 
benefit  and  recuperation  of  those  needing  such,  (c) 
by  conducting  what  is  commonly  known  as  Chautau- 
qua courses ;  by  operating  moving  pictures  and  other 
proper  and  lawful  pleasure-giving  and  instructive 
amusements ;  by  conducting  and  maintaining  musical, 
literary,  gospel,  and  evangelistic  services,  which 
shall  in  every  case  be  without  admission  fee  and 
free  to  the  people  (d)  providing  free  pavilions  and 
making  all  such  other  improvements  as  may  be 
deemed  necessary,  desirable  or  convenient  for  carry- 
ing out  the  purposes  and  objects  of  this  corporation, 
(e)  to  lay  out,  beautify  and  improve  parks,  drives, 
roadways,  board-walks  on  the  seashores  and  to  do 
each  and  everything  proper  both  expressed  and  im- 
plied in  the  foregoing  which  may  be  deemed  desir- 
able to  aid  this  corporation  in  promoting  and  de- 
veloping the  benevolent  work  for  which  it  is  organ- 
ized. 

Third,  the  County  within  which  its  operations  are 
to  be  conducted  is  Richmond  County,  New  York 
State. 

Fourth,  the  principal  office  is  to  be  located  in  the 


242         ENGLISH  CROWN  GRANTS 

Borough  of  Manhattan,  in  the  County  of  New  York 
and  State  of  New  York. 

Fifth,  the  number  of  its  directors  is  five. 

Sixth,  the  names  and  places  of  residence  of  the 
persons  to  be  its  directors  until  its  first  annual  meet- 
ing are  as  follows : 

Charles  D.  Durkee . .  Rosebank,  N.  Y. 

John  E.  Fisher Rosebank,  N.  Y. 

S.  L.  Mershon Montclair,  N.  J. 

Frank  Hamilton ....  Richmond,  N.  Y. 
Robert  G.  Davey.  .203  Broadway,  N.  Y. 

Seventh,  the  time  for  holding  the  annual  meeting 
is  on  the  first  Monday  of  October  in  each  year. 

In  witness  whereof,  we  have  made,  signed  and 
acknowledged  this  certificate,  dated  this  12th  day 
of  June,  1 9 17. 

Charles  D.  Durkee. .  .819  Fingerboard  Road,  S.  I. 

John  E.  Fisher 71  Central  Ave. 

S.  L.  Mershon 28  Forrest  St. 

Frank  Hamilton. .  .Andrews  Ave.,  Richmond,  S.  I. 
Robert  G.  Davey 404  E.  141st  St.,  N.  Y.  C. 

State  of  New  York, 
County  of  New  York,    ss. 

On  this  1 2th  day  of  June,  191 7,  before  me  per- 
sonally came 


ENGLISH  CROWN  GRANTS         243 

Charles  D.  Durkee 
John  E.  Fisher 
S.  L.  Mershon 
Frank  Hamilton 
Robert  G.  Davey 

To  me  known  and  known  to  me  to  be  the  persons 
described  in  and  who  executed  the  foregoing  cer- 
tificate and  severally  and  duly  acknowledged  to  me 
that  they  executed  the  same. 

(Signed)  Peter  F.  Wiese 

Notary  Public 

Kings  County 

Kings  County  Clerks  No.   121 

N.  Y.  Co.  Clerks  No.  382 

N.  Y.  Register's  No.  8247 

Commission  expires  Mar,  30,  19 18. 

I,  the  undersigned,  Justice  of  the  Supreme  Court 
of  the  State  of  New  York,  do  hereby  approve  of 
the  within  certificate.  Dated  at  the  city  of  New  York, 
County  of  Kings,  this  22nd  day  of  June,  1917. 

Charles  H.  Kelby 
Justice  of  the  Supreme   Court 
of  the  State  of  New  York. 
State  of  New  York, 
County  of  New  York,    ss. 

On  this  1 2th  day  of  June,  191 7,  before  me  came 
John  E.  Fisher  of  New  York,  Charles  D.  Durkee 
of  New  York  and  Robert  G.  Davey  of  New  York, 
personally  known  to  me  and  known  to  be  the  par- 
ties whose  names  appear  as  directors  of  the  fore- 
goingCertificate   of   Incorporation,   and  being   duly 


244         ENGLISH  CROWN  GRANTS 

sworn  they  severally  declared  that  they  were  citizens 
of  the  United  States  of  America. 

(Signed)  Peter  F.  Wiese 

Notary  Public 

Kings  County 

Kings  County  Clerk's  No,  121 

N.  Y.  Co.  Clerks  No.  382 

N.  Y.  Registers  No.  8247 

Commission  expires  Mar.  30,  1918. 


Section  3. 

CONTRACT. 

American  Title  and  Trust  Co. 

WITH 

The  Symes  Foundation. 

This  contract  made  and  entered  into  this  30th  day 
of  June,  1 917,  in  the  City  of  Wilmington,  State  of 
Delaware,  by  and  between  the  American  Title  and 
Trust  Company,  a  Delaware  Corporation  with  its 
principal  office  in  the  Dupont  Building  in  the  afore- 
said city  and  state.  Its  successors  and  assigns  party 
of  the  First  Part  and  The  Symes  Foundation,  Inc., 
a  New  York  Corporation  with  Its  principal  office  in 
the  Borough  of  Manhattan  in  the  City  and  State 
of  New  York,  its  successors  and  assigns,  party  of 
the  Second  Part. 


ENGLISH  CROWN  GRANTS         245 

WITNESSETH  THAT, 

Whereas  the  party  of  the  first  part  is  the  record 
owner  of  certain  of  the  rights,  title  and  interests 
now  remaining  unconveyed  by  it,  in  and  to  certain 
lands  and  premises  commonly  known  as  the  English 
Crown  Grant  to  Lancaster  Symes;  said  lands  and 
premises  being  situated  in  and  extending  to  the 
bounds  and  limits  of  the  County  of  Richmond  in 
the  State  of  New  York  and  which  said  English 
Crown  Grant  appears  of  record  in  the  office  of  the 
Secretary  of  State  at  Albany,  New  York,  in  the 
Book  of  Records  of  Patents,  Volume  7,  pages  411, 
412,  and  413,  and  also  appears  of  record  in  the 
office  of  the  County  Clerk  of  the  said  County  of 
Richmond  and  to  which  records  reference  is  hereby 
made  for  a  more  accurate  description  thereof  and 
also  as  shown  on  a  certain  map  of  said  English 
Crown  Grants  on  Staten  Island  in  said  Richmond 
County  and  which  map  is  to  be  recorded  in  the  said 
County  Clerk's  office  at  Richmond,  Staten  Island, 
and  is  entitled  "Symes  Foundation  map  of  English 
Crown  Grants  No.  i." 

Whereas  the  State  of  New  York  did  commute 
the  quit  rents  payable  under  the  aforesaid  Lan- 
caster Symes  Grant,  as  does  appear  of  record  in  the 
Record  Book  of  Quit  Rents,  Docket  48,  page  106 
in  the  Comptroller's  Office  at  Albany,  in  the  State 
of  New  York,  thereby  ratifying,  confirming  and 
establishing  forever  and  in  effect  issuing  a  new  Grant 
and  title  in  fee  thereunder  in  the  successors  of  Rec- 
ord Title  to  the  said  Lancaster  Symes,  and 

Whereas   the   State   of   New   York  did,    on   the 


246         ENGLISH  CROWN  GRANTS 

twelfth  day  of  September,  1877,  disavow  any  title 
in  and  to  the  said  Lancaster  Symes  Grant  and  Lands 
as  appears  of  record  in  the  correspondence  book  or 
letter  file  in  the  office  of  the  Secretary  of  State  at 
Albany,  New  York,  and  in  the  following  language, 
to  wit: — 

"We  have  no  knowledge  of  any  lands  be- 
"longing  to  the  State  on  Staten  Island.  In  1708 
"a  Grant  was  made  to  Lancaster  Symes,  of  all 
"and  every  piece  and  parcel  of  vacant  and  un- 
"appropriated  land  and  meadow  on  Staten 
"Island.  Many  letters  are  received  at  this  office 
'relative  to  the  title  of  occupants  on  the  Island 
'and  lands  supposed  to  be  owned  by  the  State, 
"but  we  can  furnish  no  information  except  the 
"Grants  which  appear  upon  our  records,"  and 

Whereas  the  map  hereinbefore  referred  to  is  a 
correct  tracing  from  a  map  made  and  prepared  by 
direction  of  the  Hon.  Secretary  of  State  at  Albany, 
and  which  said  map  was  ordered  so  made  by,  was 
drawn  for,  was  submitted  to  and  was  filed  with 
the  said  Hon.  Secretary  of  State  by  the  then  State 
Engineer  and  the  then  State  Surveyor  under  the 
official  direction  and  command  of  the  said  Secre- 
tary of  State.  And  a  blueprint  of  the  said  map 
printed  from  the  original  of  the  said  map  so  pre- 
pared by  the  said  State  Officers  and  employees  was 
delivered  at  the  office  of  the  Secretary  of  State  at 
Albany  to  the  first  party  hereto,  the  said  blueprint 
having  been  made  in  the  State  Engineer's  office  in 
Albany  for  First  Party  by  direct  order  from  the 
Secretary  of  State's  office  and  delivered  at  the  office 


ENGLISH  CROWN  GRANTS         247 

of  the  Secretary  of  State  to  First  Party  and  said 
blueprint  shows  the  location  of  each  and  every  por- 
tion of  said  English  Crown  Grant  made  to  lands 
on  Staten  Island  as  aforesaid  to  Lancaster  Symes, 
excepting  only,  however  that  the  said  map  and  blue- 
print thereof  do  not  show  the  bounds  and  limits  of 
Richmond  County  set  forth  in  the  said  Grant  as 
the  bounds  and  limits  thereof,  and  the  said  map 
furthermore  shows  and  was  expressly  made  intend- 
ing to  show  the  vacant  and  unappropriated  lands 
granted  as  aforesaid  to  Lancaster  Symes,  the  said 
Grant  covering  and  including  among  other  things 
"meadows,  marshes,  swamps,  pools,  ponds,  waters, 
water-courses,  rivers,  rivoletts,  runs  and  streams  of 
water"  .  .  .  within  "the  bounds  and  limits 
of  Richmond  County"  as  set  forth  in  the  aforesaid 
English  Crown  Grant  to  Lancaster  Symes,  and 

Whereas  the  First  Party  recognizes  the  fact  that 
there  are  many  rights  belonging  to  the  public  which 
are  not  specifically  comprehended  in  the  statutes 
of  the  State  of  New  York,  and  that  such  truly 
equitable  rights  frequently  are  not  obtainable  by 
the  public  through  an  action  either  at  law  or  in 
equity  but  are  only  to  be  possessed  and  enjoyed 
by  the  people  when  the  same  are  voluntarily  ac- 
corded or  surrendered  by  those  from  whom  the  same 
are  morally  due  to  the  community  under  the  higher 
law  of  righteousness,  under  which  law  of  righteous- 
ness human  needs  both  individual  and  communal 
dictate  to  the  awakened  conscience,  the  true  rule  of 
action,  and 

Whereas  the  possessory  rights  of  large  areas  of 
the  landed  estate  included  under  the  aforesaid  Lan- 


248         ENGLISH  CROWN  GRANTS 

caster  Symes  Grant,  may  have  in  fact  passed  from 
first  party,  by  the  possession  of  parties  now  hold- 
ing adversely  to  the  original  and  record  owners 
thereof,  to  the  impairment  of  said  estate,  but  the 
proofs  of  which  adverse  possession  are  difficult  to 
establish  and  largely  non-procurable  by  such  par- 
ties in  adverse  possession  and  whereas  a  large  num- 
ber of  good  and  law-abiding  citizens  residing  with 
their  families  on  Staten  Island,  relying  and  depend- 
ing upon  such  adverse  possession  and  lacking  suffi- 
cient proofs  thereof  as  required  by  law  to  sustain 
what  has  become  and  is  now  their  lawful  possession 
thereof,  would  be  dprieved  of  their  present  actual 
legal  rights  thereto  to  their  great  loss  and  hurt  by 
and  in  the  event  of  first  party's  successfully  invok- 
ing the  law  for  their  eviction,  and 

Whereas  many  law-abiding  and  industrious  citi- 
zens of  Staten  Island  have  innocently  taken  pos- 
session of  lands  included  in,  and  which  are  now 
actually  covered  by,  the  Lancaster  Symes  title,  have 
paid  to  supposedly  the  actual  owners  thereof,  sub- 
stantially full  value  therefor  and  have  thereby  fully 
believed  themselves  to  have  become  the  actual  own- 
ers thereof,  and  to  whom  a  process  of  eviction  would 
mean  financial  ruin  and  irreparable  disaster,  and 

Whereas  the  First  Party  believes  that  any  such 
wholesale  evictions  though  legal  in  character  would 
be  and  constitute  a  public  calamity,  would  entail 
great  individual  suffering  and  loss,  and  would  ad- 
versely affect  the  entire  community,  and  whereas 
First  Party  further  believes  that  a  happy,  contented 
homelife  is  a  community's  largest  asset  and  should 
be  protected  and  safe-guarded  at  almost  any  cost 


ENGLISH  CROWN  GRANTS         249 

of  private  interests  and  especially  by  corporations 
created  by  public  permission,  favor,  and  consent, 
and  which  are  intended  to  operate  for  private  gain 
consistent  only  with  the  public  welfare,  and 

Whereas  the  First  Party  believes  that  Philan- 
thropic Eleemosenary  and  Religious  Institutions  are 
the  highest  expressions  of  human  activity  in  a  Chris- 
tian Civilization  and  should  be  immune  as  far  as 
possible  from  all  controversy  and  claims  which 
would  impair  their  potency  for  the  public  weal  espec- 
ially where  such  claims  are  possessed  by  parties  who 
recognize  the  welfare  of  the  public  as  paramount 
to  extraordinary  gain  to  those  who  "have  enough 
and  to  spare"  and  especially  where  possessed  by 
corporations  whose  property  values  and  commercial 
prosperity  are  measurably  dependent  upon  the  ex- 
istence and  maintenance  of  such  institutions,  and 

Whereas  the  First  Party,  moved  by  the  consid- 
erations hereinbefore  expressed,  has  inspired  by  its 
suggestion  and  has  directed  the  organization  and 
incorporation  of  Second  Party  hereto  and  Second 
Party  hereto  has  become  a  corporate  body  under 
the  laws  of  the  State  of  New  York  with  full  powers 
for  its  complete  performance  hereunder  and  as  pro- 
vided herein,  and 

Whereas  the  parties  hereto  mutually  and  sever- 
ally desire  that  the  property  rights  and  privileges 
aforesaid  which  are  situated  within  the  bounds  and 
limits  of  said  Richmond  County  and  which  are 
owned  and  possessed  by  the  first  party  hereto,  shall 
be  and  become  controlled,  managed,  leased  or  sold 
as  herein  provided  and  the  proceeds  thereof  largely 
devoted  and  applied  for  the  physical,  mental,  moral 


250         ENGLISH  CROWN  GRANTS 

and  spiritual  betterment  of  Staten  Island  for  all 
time  to  come 

Now  THEREFORE,  the  parties  hereto  moved  by 
such  unity  of  purpose  and  harmony  in  conclusions 
hereinbefore  expressed  and  further,  in  considera- 
tion of  the  circumspect  and  unselfish  attitude  of 
the  people  of  Staten  Island  toward  the  First  Party 
hereto  pending  First  Party's  assertion  and  develop- 
ment of  proof  of  its  right  and  title  to  the  proper- 
ties covered  by  and  included  in  the  Lancaster 
Symes  English  Crown  Grant  and  further  in  con- 
sideration of  those  higher  and  holier  claims  that 
rest  upon  each  member  of  the  social  order  in  our 
Christian  civilization  to  seek  the  highest  happiness 
and  greatest  good  of  the  individual  and  of  the  com- 
munity at  large  and  for  other  valuable  considera- 
tions, the  adequacy  and  receipt  of  which  the  parties 
hereto,  herein  admit  and  declare,  the  First  and  Sec- 
ond parties  hereto  mutually  and  severally  agree  as 
follows,  to  wit: — 

I. 

The  First  Party  hereto  does  hereby  grant,  assign, 
transfer,  release  and  convey  to  the  party  of  the 
Second  Part  all  of  first  party's  rights,  title  claims 
and  interest  now  remaining  in,  to  and  under  the 
aforementioned  English  Crown  Grant  to  Lancaster 
Symes  to  lands  and  other  values  not  heretofore  con- 
veyed by  First  Party  within  the  bounds  and  limits 
of  Richmond  County  in  the  State  of  New  York  as 
said  Grant  is  shown  in  the  Records  in  the  office 
of  the   Secretary  of  State   at  Albany   and  in   the 


ENGLISH  CROWN  GRANTS         251 

office  of  the  County  Clerk  of  Richmond  County, 
New  York,  and  as  shown  on  the  aforementioned  and 
described  map  and  as  contained  within  the  said 
bounds  and  limits  of  Richmond  County  as  such 
bounds  and  limits  are  now  constituted  and  defined 
and  as  they  were  constituted  and  defined  at  the 
time  of  the  issue  by  the  English  Crown  of  the  afore- 
mentioned English  Crown  Grant  to  Lancaster 
Symes.  This  transfer  and  conveyance  is  absolute 
and  without  reservation.  The  proceeds  from  the 
sale,  leasing  or  operation  of  the  properties  herein 
referred  to  are  subject  only  to  the  terms  and  con- 
ditions herein  provided;  the  lands  conveyed  to  Sec- 
ond Party  as  aforesaid  are  absolutely  free  of  any 
lien  upon  or  ownership  therein  reserved  to  first 
party. 

IL 

The  Second  Party  hereto  shall  forthwith,  or  as 
soon  hereafter  as  it  may  find  the  same  to  be  reason- 
ably practicable,  release  by  quit  claim  under  the 
said  Symes  Grant  upon  satisfactory  application  be- 
ing made  to  it  therefor,  the  following  classes  of 
lands  or  properties  on  Staten  Island  and  within  said 
Richmond  County,  to  wit: — 

(a)  Each  and  every  Church  property  or  place 
of  worship  that  is  devoted  to  the  worship  of  Al- 
mighty God  and  the  Record  title  to  which  is  held 
by  a  duly  accredited  reliigous  organization  legally 
incorporated  and  conducting  or  sanctioning  such 
worship  with  proper  authority  and  right  so  to  do. 

(b)  Every  piece  of  land  on  which  is  erected  an 


252         ENGLISH  CROWN  GRANTS 

institution  devoted  to  human  uplift,  supported  en- 
tirely or  substantially  so  by  philanthropy  or  charity. 
In  this  class  shall  be  included: — 

( 1 )  Schools. 

(2)  Children's    homes,    orphan    asylums    and 
homes  for  the  aged  and  infirm. 

(3)  Hospitals. 

(4)  Asylums. 

excepting  only  however,  that  Second  Party  may  at 
its  discretion  decline  to  consider  as  included  herein 
or  may  from  time  to  time  elect  to  include  herein 
institutions  supported  by  public  taxation. 

(c)  Burial  grounds  or  cemeteries  which  are  un- 
der religious  auspices  and  ownership  and  which  are 
operated,  controlled  and  possessed  by  corporations 
organized  to  be  conducted  without  profit. 

All  family  burial  places  are  to  be  included  here- 
under unless  in  the  judgment  of  Second  Party,  cer- 
tain burial  places  should  be  omitted  because  of  in- 
definite or  uncertain  locations  or  for  other  reasons 
approved  by  the  judgment  and  conscience  of  Second 
Party. 

(d)  The  homes  and  homesteads  of  Staten  Island 
shall  be  released  by  Second  Party  from  the  lien  or 
claim  of  the  Lancaster  Symes  Grant,  to  such  an 
extent  and  in  such  instances  as  the  judgment  of 
the  Second  Party  may  dictate.  It  is  the  desire  of 
First  Party  hereto  that  the  homelife  of  Staten  Island 
as  now  existing  in  its  present  homesteads  shall  be 
forever  free  of  any  and  all  claims  or  shadow  of 
claims  under  the  said  Symes  Grant.  Which  home- 
steads are  and  which   are  not  entitled  to  such   re- 


ENGLISH  CROWN  GRANTS         253 

lease  shall  be  determined,  however,  by  Second 
Party.  While  Second  Party  is  hereby  clothed  with 
discretionary  power  to  decide  and  determine  in  each 
case  the  merits  of  each  claim  for  releasement  here- 
under, the  first  party  hereto,  hereby  solemnly  charges 
the  second  party  at  all  times  to  consider  well  the 
First  Party's  wishes  in  this  matter  and  to  discrim- 
inate adversely  only  where  such  adverse  discrim- 
ination, in  Second  Party's  judgment  is  truly  equitable 
and  will  not  prove  to  be  financially  burdensome  or 
which  discrimination  is  otherwise  fully  justified  un- 
der the  spirit  of  this  instrument. 

III. 

Certain  beaches  or  shore  fronts  adapted  for  pub- 
lic bathing  places  shall  be  set  apart  at  the  judgment 
and  discretion  of  Second  Party  for  the  benefits  of 
the  public  at  large.  Such  beaches  shall  be  selected 
designated  and  so  appropriated  at  times  and  loca- 
tions approved  by  the  judgment  of  Second  Party. 
Such  beaches  shall  be  under  the  management  of 
Second  Party  or  parties  designated  and  appointed 
by  Second  Party  and  shall  be  free  to  the  public 
subject  only  to  such  limitations  and  restrictions  as 
may  be  from  time  to  time  considered  desirable  and 
best  and  which  shall  be  prescribed  by  Second  Party 
for  the  proper  maintenance,  improvement  and  de- 
velopment of  the  same.  Second  Party  may  keep 
and  maintain  such  beaches  in  perpetuity  for  the 
welfare  of  the  public  or  may  change  and  remove 
such  public  privileges  and  facilities  from  one  loca- 
tion to  another  location  as  in  the  judgment  of  the 
Second  Party  shall  best  serve  the  public,  or  it  may 


254         ENGLISH  CROWN  GRANTS 

from  time  to  time  regulate  and  restrict  the  same 
as  in  its  judgment  may  best  serve  the  highest  good 
of  the  public. 

This  provision  is  intended  to  restore  to  the  citi- 
zens of  Staten  Island  and  to  those  who  seek  its 
shores  adequate  bathing  beaches  and  beneficial 
pleasure  resorts  well  regulated  under  strict  moral 
control  and  management  and  where  health  and  hap- 
piness shall  be  promoted  by  equipment  and  appli- 
ancees  calculated  for  physical  development,  mental 
entertainment  and  spiritual  instruction. 

It  is  intended  hereby  that  God's  free  air  and  His 
ocean  tides  on  Staten  Island  shores  shall  be  the 
portion  of  the  citizens  as  freely  as  the  judgment 
and  discretion  of  Second  Party  hereto  may  so  supply 
the  same  under  proper  regulations  substantially  if 
not  absolutely  without  money  and  without  price  and 
under  pleasure  producing  and  character  building  in- 
fluences consistent  with  the  teachings  of  Jesus  Christ. 

IV. 

First  Party  having  been  advised  by  counsel  and 
citizens  of  Staten  Island  that  certain  parties  have 
trespassed  upon  certain  of  the  aforesaid  lands  sit- 
uated on  what  is  commonly  known  as  Lake  Island 
(which  Lake  Island  Is  a  portion  of  Staten  Island), 
have  established  a  garbage  plant  thereon  and  are 
treating  or  manipulating  thereon  garbage  from 
other  boroughs  against  the  protests  of  an  over- 
whelming majority  of  the  people  of  Staten  I«^land 
and  also  that  certain  prominent  citizens  of  Staten 
Island  have  been  sued  at  law  by  certain  parties  for 
damages  which  such  parties  claim  to  have  suffered 


ENGLISH  CROWN  GRANTS         255 

from  and  because  of  such  citizens  alleged  attempts 
to  restrain  the  manipulation  of  said  garbage  on 
Staten  Island  in  defiance  of  the  aforementioned  pub- 
lic sentiment. 

Now  THEREFORE,  Second  Party  shall  at  Its  dis- 
cretion, convey  to  some  representative  citizen  of 
Staten  Island  as  trustee  to  be  selected  by  Second 
Party,  preferably  to  the  President  of  one  of  the 
Staten  Island  Savings  Banks  or  to  a  President  of 
a  Staten  Island  Building  &  Loan  Association,  all 
of  Second  Party's  right,  title  and  interest  in  and  to 
the  said  Lake  Island  and  its  waterfront  including 
the  land  under  water  connected  therewith  extend- 
ing to  the  center  or  thread  of  Fresh  Kill.  The  said 
land  and  water  front  on  Lake  Island  if  and  when 
so  conveyed  may  be  sold  by  said  trustee  if  deemed 
by  him  necessary  to  compensate  or  financially  pro- 
tect said  citizens,  so  sued  as  aforesaid,  in  the  event 
of  a  decree  against  said  citizens  in  the  above  men- 
tioned suit  or  to  defray  the  expenses  of  the  Second 
Party  or  of  Second  Party  and  said  citizens  in  con- 
testing the  right  of  said  parties  so  to  occupy  and 
possess  Lake  Island  or  any  part  thereof  as  afore- 
said or  to  manufacture  or  treat  garbage  at  any 
place  on  Staten  Island,  all  however  subject  to  such 
terms,  conditions  and  restrictions  as  Second  Party 
may  deem  proper  to  stipulate  in  the  premises.  Full 
discretion  is  hereby  expressly  given  to  Second  Party 
under  this  Section. 


V. 

As  the  lands  or  properties  hereinbefore  referred 


256         ENGLISH  CROWN  GRANTS 

to  are  of  a  varied  nature  or  are  of  a  diversified 
character  and  as  it  may  prove  difficult  at  all  times 
to  determine  who  may  or  who  may  not,  be  entitled 
to  the  benefits  intended  to  be  granted  as  aforesaid 
under  Section  II  hereof  or  what  property  or  prop- 
erties may  or  may  not  be  included  or  intended  to 
be  included  in  any  one  or  more  of  the  foregoing 
classifications  and  as  the  right  and  power  to  make 
such  determination  should  and  must  rest  and  abide 
somewhere;  the  Party  of  the  Second  Part  is  to  have 
the  final  and  exclusive  right  hereunder  to  settle  and 
determine  the  same  according  to  its  best  judgment 
if  and  as  any  uncertainty  may,  from  time  to  time 
arise,  or  when  and  as  any  uncertainty  or  controversy 
relating  thereto  arises,  anything  contained  herein  to 
the  contrary  notwithstanding.  Such  decision  or  de- 
cisions made  by  Second  Party  from  time  to  time 
shall  be  final,  conclusive  and  binding  upon  all  parties 
hereto  or  claiming  hereunder.  Such  decisions  may 
be  reversed,  rescinded,  or  modified  at  any  time  there- 
after by  Second  Party  if  it  deems  such  reversal, 
decision  or  modification  to  be  equitable  and  proper, 
but  not  where  the  titles  subject  to  such  decision  have 
passed  from  Second  Party  to  other  parties  in  the 
meantime.  ' 


VI. 


Second  Party  may  make  such  nominal  charges 
as  it  may  from  time  to  time  deem  to  be  proper, 
proportionate,  appropriate  and  sufficient,  to  cover 
Second  Party's  actual  cost  in  releasing  the  prop- 
erties or  lands  referred  to  herein  and  may  make 
such  charges  in  each  case  or  in  any  case,  a  condl- 


ENGLISH  CROWN  GRANTS         257 

tion  precedent  to  the  making  of  such  release  or 
releases  or  Second  Party  may  at  its  discretion  waive 
any  and  all  such  charges  and  costs  or  may  make 
any  charges  therefor  as  it  may  consider  equitable 
or  suited  to  the  conditions  of  the  applicant.  It  is 
not  intended  that  any  profits  shall  be  made  by  Sec- 
ond Party  from  such  charges  but  it  is  intended  that 
Second  Party  may  charge  what  it  believes  to  be 
its  fair  average  cost  or  its  cost  in  the  particular 
cases.  The  Second  Party  is  to  have  absolute  author- 
ity to  fix  such  rates  from  time  to  time  and  such 
rates  or  schedule  of  rates  shall  be  final  until  altered 
or  changed  by  Second  Party. 


VII. 


No  action  shall  be  taken  by  Second  Party  in  any 
matter  relating  to  any  release  of  property  here- 
under in  which  property  any  director  or  officer  of 
Second  Party  is  personally  interested  as  claimant 
unless  such  director  or  officer  is  absent  or  with- 
draws from  the  meeting  at  which  such  proposed 
action  is  taken  and  during  the  final  discussion  thereof 
at  such  meeting  and  at  which  meeting  the  ques- 
tion is  fully  discussed  and  is  so  reported  on  the 
minutes  of  such  meeting  as  to  have  been  finally  dis- 
cussed and  voted  on  in  the  absence  of  such  claim- 
ant. No  director  shall  vote  on  any  matter  par- 
ticularly relating  to  property  in  which  he  or  his 
immediate  family  is  known  by  him  to  be  financially 
interested  as  an  owner  or  claimant  thereto. 


258         ENGLISH  CROWN  GRANTS 

VIII. 

The  First  Party  waives  any  and  all  right  to  re- 
ceive any  further  payment  from  Second  Party  from 
any  properties  or  land  granted  or  leased  by  Second 
Party  for  a  nominal  consideration  only,  under  Sec- 
tion II  hereof  as  specified  in  subdivisions  a,  b,  c,  d, 
e,  f,  of  said  Section  II.  All  deeds  granted  by  The 
Symes  Foundation  shall  be  Quit  Claim,  and  shall 
be  conditioned  to  prohibit  forever  the  use  of  lands 
affected  for  the  manufacture  or  sale  of  alcoholic 
beverages  or  liquors. 

IX. 

Second  Party  is  to  account  in  detail  and  pay  to 
First  Party  one-half  of  all  money  received  by  Sec- 
ond Party  from  the  sale,  leasing  or  other  business 
done  by  Second  Party  with  any  of  the  lands,  etc. 
herein  mentioned  which  may  be  sold,  leased,  or  op- 
erated by  Second  Party  excepting  as  otherwise  herein 
provided.  Such  accountings  and  payments  are  to 
be  made  by  Second  Party  to  First  Party  on  the 
first  day  of  each  and  every  January,  April,  July  and 
October  of  each  and  every  year.  Such  payments 
shall  be  accompanied  by  proper  credit  vouchers  duly 
audited,  but  Second  Party  shall  not  be  required  here- 
under to  pay  to  First  Party  any  of  the  nominal 
fees  charged  for  properties  released  under  Section 
II  hereof. 

Any  and  all  funds  collected  by  Second  Party  here- 
to on  or  between  the  dates  designated  herein  and 
which  funds  under  the  terms  hereof  are  to  be  and 
become  payable  to  First  Party  hereto  are  to  be  de- 


ENGLISH  CROWN  GRANTS         259 

posited  in  Banks  or  Trust  Companies  designated 
from  time  to  time  by  the  party  of  the  First  Part 
and  which  Banks  or  Trust  Companies  shall  be  ap- 
proved by  and  be  in  good  standing  with  the  bank- 
ing department  of  the  state  in  which  the  same  is 
located.  When  such  funds  are  so  deposited  in  said 
banks  or  trust  companies  they  shall  be  there  so 
held  until  the  proper  date  of  payment  thereof  to 
First  Party  at  the  risk  of  First  Party  or  all  or  a 
part  thereof  may  be  paid  to  First  Party  by  Second 
Party  prior  to  such  date. 

The  remaining  one-half  of  such  moneys  so  re- 
ceived by  Second  Party  from  the  sale,  leasing  or 
operation  of  the  aforesaid  properties  is  to  be  used 
by  Second  Party  on  Staten  Island  for  Second  Party's 
operating  expenses  and  for  the  establishment  of  in- 
stitutions and  equipment  intended  by  Second  Party 
to  secure  the  physical,  mental,  moral  and  spiritual 
betterment  of  the  public.  The  form  and  manner 
of  such  expenditure  and  use  shall  be  such  as  in  the 
judgment  of  the  Second  Party  will  be  consistent 
with  the  principles  and  teachings  of  Jesus  Christ. 
Such  expenditures  may  take  the  form  of  beach  im- 
provements; educational  and  religious  instruction, 
the  erection  and  maintenance  of  a  tabernacle  for 
interdenominational  religious  services,  conventions 
and  other  assemblies;  the  construction  and  main- 
tenance of  hotels  for  self-supporting  young  women 
and  others,  the  same  to  be  operated  at  cost;  the 
building  of  bungalows  for  rentals  at  so  near  cost 
as  Second  Party  can  determine;  the  equipment  of 
tennis  courts ;  the  supplying  of  bathing  facilities  and 
other  proper  comforts  and  conveniences  for  the  hap- 
piness of  and  benefits  to  the  public;  the  maintenance 


26o         ENGLISH  CROWN  GRANTS 

of  what  is  known  as  fresh  air  work  for  women 
and  children  and  said  expenditures  may  take  such 
other  forms  as  Second  Party  may  deem  to  be  in 
accordance  with,  the  true  intent  of  this  instrument. 
First  Party  shall  have  the  right  at  any  and  all 
reasonable  times  to  inspect  the  books  of  Second 
Party  and  to  have  the  same  at  any  time  audited  by 
auditors  employed  by  First  Party  at  its  own  ex- 
pense in  order  that  First  Party  may  be  at  all  times 
satisfied  with  the  system  and  methods  employed  by 
Second  Party  in  keeping  such  accounts.  Such  ac- 
counts shall  be  at  all  times  well  and  properly  kept 
by  Second  Party. 

X. 

Nothing  contained  herein  shall  be  construed  as 
even  implying  that  Second  Party  shall  not  use  a 
proportion  of  its  segregated  income  from  the  afore- 
said proceeds,  for  the  payment  of  its  general  ex- 
penses incurred  by  it  in  the  operation  of  its  affairs 
other  than  those  actually  incurred  on  Staten  Island. 
It  is  itnended,  however,  that  all  incomes  accruing 
hereunder  to  Second  Party  as  afore  provided  are 
to  be  used  in  the  payment  of  Second  Party's  ex- 
penses of  administration  and  are  to  be  preferably 
invested  and  expended  on  tSaten  Island  as  afore- 
said, according  to  the  judgment  and  discretion  of 
Second  Party.  In  no  event  shall  any  such  incomes 
to  Second  Party  be  construed  to  be  or  constitute 
a  commercial  profit  or  dividend  payable  to  or  to 
be  distributed  among  any  members  or  shareholders 
in  Second  Party  or  for  any  distribution  other  than 
herein  provided.     The   amount  to  be  paid  to  the 


.    ENGLISH  CROWN  GRANTS         261 

officers,  employees,  and  directors  of  Second  Party 
as  aforesaid  is  to  be  determined  from  time  to  time 
by  the  best  judgment  of  the  said  directors  as  proper 
and  fair  compensation  for  actual  personal  services 
rendered  therefor,  entirely  apart  from  and  inde- 
pendent of  any  vested  interest  which  any  such  party 
or  parties  may  have  in  Second  Party. 

XL 

Second  Party  shall  only  be  liable  hereunder  for 
any  expenditures  and  investments  made  according 
to  the  exercise  from  time  to  time  by  Second  Party's 
officers  and  directors  of  their  best  judgment  in  the 
premises.  The  First  Party  hereto  declines  to  hold 
Second  Party's  officers  and  trustees  to  personal  liabil- 
ity hereunder  for  any  errors  or  mistakes  of  judg- 
ment made  by  them  while  in  the  performance  of 
services  rendered  under  this  sacred  trust. 

XIL 

Second  Party  may  invest,  preferably  on  Staten 
Island,  any  funds  which  it  may  be  entitled  to  and 
does  receive  under  its  allotment  of  one-half  of  the 
incomes  hereunder  if  it  desires  so  to  do  and  by 
such  investment  undertakes  to  create  a  reserve  or 
interest  bearing  fund  for  the  carrying  out  of  the 
purposes  hereof.  In  such  events  such  investments 
so  made  shall  be  made  in  accordance  with  the  best 
judgment  of  the  directors  and  when  so  made,  no 
further  obligation  or  liability  shall  rest  upon  the 
directors  for  the  safety  of  such  investment. 

It  is  the  desire   of  the  first  party,   though  not 


262         ENGLISH  CROWN  GRANTS 

required  hereby,  that  Second  Party  shall  seek  to 
so  invest  or  loan  from  time  to  time  portions  of  sue 
funds  at  low  rates  of  interest  as  will  enable  the 
worthy  laboring  classes  to  erect  their  own  homes 
on  Staten  Island  according  to  plans  approved  by 
the  Second  Party. 

XIII. 

In  order  that  the  true  intent  of  this  instrument 
may  be  carried  out  in  perpetuity,  it  is  stipulated  by 
the  First  Party,  and  accepted  by  Second  Party; 

First,  that  the  incorporating  members  of  The 
Symes  Foundation  and  the  first  or  original  Board 
of  Directors  thereof  shall  be  five. 

Second,  that  the  first  or  original  Board  of  Direc- 
tors shall  continue  in  office  and  shall  have  power 
to  choose  and  elect  a  director  to  fill  any  vacancy 
or  vacanies  therein  from  whatever  cause,  for  and 
during  the  period  of  two  years  from  the  date  of 
the  execution  of  this  instrument  and  until  their  suc- 
cessors are  duly  elected  and  qualified. 

Third,  that  on  or  before  the  expiration  of  the 
said  period  of  two  years,  according  to  the  judgment 
so  expressed  by  either  party  hereto  the  Board  of 
Directors  of  Second  Party  shall  be  increased  to 
seventeen  members  to  be  selected  in  the  following 
manner,  to  wit: — 

The  then  existing  Board  of  Directors  shall  choose 
and  elect  two  laymen  who  shall  be  officials  in  the 
Reformed  (Dutch)  Church  of  Staten  Island  or 
members  thereof  approved  by  two  of  its  pastors; 
two  who  shall  be  officials  in  the  Methodist  Epis- 
copal Church  of  Staten  Island  or  members  thereof 


ENGLISH  CROWN  GRANTS         263 

approved  by  two  of  its  pastors;  one  who  shall  be 
an  official  in  the  Protestant  Episcopal  Church  of 
Staten  Island  or  a  member  thereof  approved  by 
one  of  its  Rectors;  one  who  shall  be  an  official  in 
the  Baptist  Church  of  Staten  Island  or  a  member 
thereof  approved  by  one  of  its  pastors;  and  one 
who  shall  be  an  official  in  the  Moravian  Church  of 
Staten  Island  or  a  member  thereof  approved  by 
one  of  its  pastors;  and  one  who  shall  be  a  member 
of  the  Roman  Catholic  Church.  And  said  existing 
Board  of  Directors  shall  also  select  nine  others  who 
shall  be  active  members  or  ministers  of  the  Presby- 
terian Church  at  least  two-thirds  of  whom  shall  be 
laymen,  preferably  though  not  of  necessity,  active 
elders  of  the  Presbytery  of  New  York;  and  the 
Presbytery  of  New  York  shall  have  the  right  at 
its  discretion  to  elect  or  substitute  others  In  the 
place  of  all  or  some  of  the  laymen  so  selected  or 
to  be  selected.  When  the  same  have  been  elected 
and  have  signified  their  acceptance  in  proper  form 
and  manner,  then  these  nine  persons  together  with 
the  eight  elected  as  heretofore  described,  shall  con- 
stitute the  Board  of  Directors  of  The  Symes  Foun- 
dation for  the  ensuing  year  or  until  their  successors 
are  elected  and  qualified.  This  method  shall  be 
adopted  annually  thereafter  for  the  election  of  Di- 
rectors. In  case  of  failure  on  the  part  of  the  Pres- 
bytery of  New  York  to  elect  or  substitute  as  afore- 
said other  directors  for  the  position  of  Directors  of 
The  Symes  Foundation,  the  nine  directors  named 
by  the  then  existing  Board  of  Directors  shall  act 
as  directors  for  such  vacancies  for  the  year  in  which 
such  failure  occurs  and  for  such  service  until  their 
successors  are  elected  and  qualified.     The  designa- 


264         ENGLISH  CROWN  GRANTS 

tlon  of  the  Presbytery  of  New  York  as  the  organ- 
ization having  power  hereunder  at  any  and  all  elec- 
tions to  cause  the  election  of  the  majority  of  the 
Board  of  Directors  is  in  no  wise  intended  to  make 
The  Symes  Foundation  a  Presbyterian  or  Sectarian 
undertaking.  The  power  to  control  the  Foundation 
in  the  interest  and  for  the  furtherance  of  the  high- 
est ideals  in  social  and  economic  life  must  abide 
and  rest  under  safe  control  and  the  Presbytery  of 
New  York  is  designated  without  prejudice  to,  but 
in  the  interest  of  and  to  conserve  Christian  Cath- 
olicity in  an  Evangelical  undertaking  operating  with- 
out personal  or  private  profit  in  behalf  of  the  public 
weal. 

Should  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States  of  America  by  proper 
action  and  the  appointment  of  a  proper  committee 
therefor  decide  to  and  does  undertake  to  assume 
the  duties  and  responsibilities  herein  set  forth  and 
provided  to  be  done  and  performed  by  the  Pres- 
bytery of  New  York  and  so  notifies  second  party 
hereto  then  the  said  General  Assembly  of  the  Pres- 
byterian Church  in  the  United  States  of  America 
shall  be  from  that  date  substituted  for  the  said 
Presbytery  of  New  York  as  fully  and  completely  as 
if  it  had  been  so  designated  and  provided  in  this 
instrument  at  its  inception  and  at  the  time  of  the 
execution  thereof. 

XIV. 

The  First  Party  hereto  disavows  any  and  every 
desire  on  its  part  to  impose  any  restrictions  or  bind- 
ing pledges  upon  the  Directors  of  The  Symes  Foun- 
dation that  would  in  any  wise  interfere  with  the  ex- 


ENGLISH  CROWN  GRANTS         265 

ercise  by  the  said  Directors  of  their  unhampered 
and  best  judgment  as  Trustees  in  the  election  of  its 
Executive  officers.  First  Party  would,  however, 
herein  express  its  opinion  that  because  of  special 
legal  training.  Christian  education  and  experience 
together  with  a  keen,  close  and  sympathetic  acquaint- 
ance on  his  part  with  the  needs  and  future  possibillti- 
ties  of  Staten  Island,  Robert  G.  Davey,  is  specially 
qualified  to  act  as  the  President  and  managing  Direc- 
tor of  The  Symes  Foundation.  First  Party  further 
expresses  its  opinion  that  qualification  for  duty,  effi- 
cient service,  together  with  health  and  strength  make 
their  own  appeal  for  continuing  re-election  of  a  faith- 
ful officer. 

XV. 

It  is  especially  and  particularly  stipulated  and 
agreed  between  the  Parties  hereto  anything  con- 
tained herein  to  the  contrary  notwithstanding  that 
if  in  the  course  or  progress  of  time  any  of  the  restric- 
tions or  limitations  hereinbefore  imposed  by  First 
Party  are  deemed  by  Second  Party  to  be  impractical 
or  in  effect  hamper  and  impair  the  carrying  out  of 
the  true  intent  of  this  instrument  then  and  in  that 
event  or  at  such  time  or  times  as  such  occasion  may 
arise  Second  Party  may  make  overture  to  the  afore- 
said General  Assembly  of  the  Presbyterian  Church 
in  the  United  States  of  America  for  a  modification 
or  cancellation  of  such  restrictions  or  a  temporary 
suspension  thereof  and  such  action  which  may  at 
such  times  or  times  be  taken  by  the  said  General  As- 
sembly, shall  be  binding  and  conclusive  in  the  prem- 
ises and  such  action  or  actions  is  hereby  ratified  and 
confirmed  in  advance  and  shall  have  the  same  force 


266         ENGLISH  CROWN  GRANTS 

and  effect  as  if  the  same  had  been  stipulated  and  in- 
cluded herein  at  the  time  of  the  executiion  hereof, 
but  in  no  such  event  shall  the  Evangelical  and  inter- 
denominational character  or  spirit  of  this  instrument 
be  impaired. 

XVI. 

The  First  Party  hereto  reiterates  its  solemn  de- 
sire and  intent  that  the  Second  Party  shall  have  and 
Second  Party  does  hereby  receive  the  lands,  claims, 
rights  and  properties  herein  specified,  charged  with 
a  greaet  moral  responsibility  to  use  its  highest  and 
best  judgment  in  behalf  of  the  health,  happiness  and 
welfare  of  the  citizens  of  Staten  Island  and  the 
proper  and  conscientious  conservation  of  all  the  in- 
terests committed  to  it  hereunder  by  the  First  Party. 
In  witness  whereof  the  parties  hereto  have 
caused  this  instrument  to  be  duly  executed  by  their 
respective  Presidents,  duly  attested  under  their 
corporate  seals  on  the  day  and  year  first  above 
written. 

American  Title  &  Trust  Company. 
By  S.  L.  Mershon, 

President. 
[seal] 
Attest 

Walter  Merritt  Brokaw, 
Secretary. 
The  Symes  Foundation, 

By  Robert  G.  Davey, 

President. 
[seal] 
Attest 

J.  C.  Fisher,  Secretary. 

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